A court adjudication of parentage can establish the right to inherit under the Texas Estates Code. There is no specific requirement concerning the form of the court proceeding or order to adjudicate parentage, but the court must have personal jurisdiction over the individual to be adjudicated a parent.

In this case, we believe Texas courts would find that under Texas intestate succession law, the Claimants could inherit property from the number holder as their adjudicated father based on the Order Adjudicating Parentage and supportive genetic testing evidence provided along with it.

On behalf of her two children, A1~ and R1~ (Claimants), A2~ (Mother) filed an application for child’s insurance benefits and the lump sum death payment (LSDP) under Title II of the Social Security Act (Act) on the record of the deceased number holder R2~, who died on May XX, 2021, domiciled in Texas. Applying the factors of Gray v. Richardson and section 216(h)(2)(A) of the Act to determine the Claimants’ status as the NH’s children for Title II benefits, you asked whether the Claimants established the right to inherit from the NH as his children under Texas intestate succession law given the evidence provided, which includes a Texas state court order adjudicating parentage based on paternal grandparent genetic testing results.

We believe Texas courts would find that the Claimants have established the right to inherit from the NH as his children under Texas intestate succession law based on the state court order adjudicating the NH to be their father. Consistent with Social Security Ruling (SSR) 83-37c, although we believe that the Texas state court order adjudicating parentage does not meet all of the factors of Gray v. Richardson and does not bind the agency, we believe there is legal support for the agency to rely upon this state court order to find that the Claimants are the NH’s children for Title II benefit purposes.

The NH died on May XX, 2021, domiciled in Texas.^[1] On July XX, 2021, the Mother filed an application for child’s insurance benefits and the LSDP on behalf of the Claimants on the NH’s record alleging they are his children. It is our understanding that the NH and the Mother were never married.

Claimant R1~ was born on December XX, 2016. Claimant A1~ was born on May XX, 2020. You advised that the Claimants’ EAB Numident records do not list a father. Copies of the Claimants’ Texas birth certificates identify the Mother and the NH as their parents.

In addition to their birth certificates, the Mother has provided a Texas court order adjudicating parentage and genetic testing results to support her claim that the Claimants are the NH’s children. These documents show that on June XX, 2022, the Mother filed a Petition to Adjudicate Parentage in the case In the Interest of R1~ and A1~, Children, in the District Court, 220th Judicial District, Comanche County, Texas with the purpose to establish the parent-child relationship between the NH and the Claimants. The Mother attached to the Petition genetic testing results of the Claimants and one of the NH’s relatives, his father R3~. (Paternal Grandfather).

A DNA Diagnostics Center (DDC) DNA Test Report testing the Mother, Claimant R1~, and the alleged Paternal Grandfather in May 2022 was attached as Exhibit A to the Petition. This DNA Test Report identifies a probability of relatedness of 99.9% with the likelihood that the alleged relative was the child’s biological relative of 1,165 to 1 (the combined relatedness index). The DNA Test Report was signed by a laboratory director before a notary on May XX, 2022. The laboratory director verified that the interpretation of the results was correct as reported. DDC is accredited/certified by AABB.

A DDC DNA Test Report testing the Mother, Claimant A1~, and the alleged Paternal Grandfather in May 2022 was attached as Exhibit B to the Petition. This DNA Test Report showed a probability of relatedness of 99.999% with the likelihood that the alleged relative was the child’s biological relative of 127,054 to 1 (the combined relatedness index). The DNA Test Report was signed by a laboratory director before a notary on May XX, 2022. The laboratory director verified that the interpretation of the results was correct as reported. DDC is accredited/certified by AABB.

On July XX, 2022, the Texas state court issued an Order Adjudicating Parentage in the case finding the NH to be the Claimants’ father based on the paternal grandfather genetic testing. The court found that it had jurisdiction of the case and all parties and that all persons entitled to citation were properly cited. The court found that the results of genetic testing performed by DDC on May XX, 2022 had been submitted to and accepted by the court with regard to Claimant A1~ and Claimant R1~ and that the results do not exclude the NH as the Claimants’ father nor identify another man as the father. The court adjudicated the NH to be the Claimants’ father establishing the parent-child relationship “for all purposes.” The court ordered Claimant R1~’s last name be changed to the NH’s last name and ordered the vital statistics unit to amend the Claimants’ birth records to add the NH as their father.

We believe Texas courts would find that the Claimants have established the right to inherit from the NH as his children under Texas intestate succession law based on the state court order adjudicating the NH to be their father. Consistent with SSR 83-37c, although we believe that the Texas state court order adjudicating parentage does not meet all of the factors of Gray v. Richardson and does not bind the agency, we believe there is legal support for the agency to rely upon this state court order to find that the Claimants are the NH’s children for Title II benefit purposes.

Texas law provides that the items on a birth certificate relating to a child’s father should only be completed if the child’s mother was married to the father; paternity is established by a court order; or a valid acknowledgment of paternity has been executed by the father and filed with the State’s vital statistics unit.

In this case, there is no marriage between the number holder (NH) and the Claimant's mother and no court order. Although the law requires an acknowledgment of paternity be completed before being named on the birth certificate, it is unknown whether the law was followed. We believe Texas courts would require the validly executed acknowledgment of paternity before allowing inheritance under Texas intestate succession law under section 201.052(a)(4) and would not rely upon the NH’s name being listed on the birth certificate alone. Therefore, we believe there is legal support for the agency to find that the Claimant has not proven a parent-child relationship under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the NH’s record and the NH's wife's application for spouse’s insurance benefits on the NH’s record as his spouse with his child in her care

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the disabled number holder J~ (NH) and the claimant M~ (Claimant), for purposes of the Claimant’s application for child’s insurance benefits on the NH’s record under the Social Security Act (Act) as his child, and F~’s application for spouse’s insurance benefits as the NH’s spouse with his child in her care. Specifically, applying section 216(h)(2)(A) of the Act, you asked whether the evidence, consisting primarily of the Claimant’s Texas birth certificate identifying the NH as his father, is sufficient to establish a parent-child relationship under Texas law even though the NH is not the Claimant’s biological father.

We believe Texas courts would find that the evidence is insufficient to allow Claimant to inherit from the NH as his child under Texas intestate succession law. Therefore, we believe there is legal support for the agency to find that the Claimant has not proven a parent-child relationship under section 216(h)(2)(A) of the Act, for purposes of his application for child’s insurance benefits on the NH’s record, and F~’s application for spouse’s insurance benefits on the NH’s record as his spouse with his child in her care.

A Texas marriage certificate reflects that the NH married F~ on February XX, 2004.

The Claimant was born in Brownsville, Texas on October XX, 2008. A Texas birth certificate identifies P~ as the Claimant’s mother and the NH as the Claimant’s father. The NH and F~ told the agency that P~ is their niece, but we have no further information on the Claimant’s mother or her relationship with the Claimant. The NH has stated that the Claimant’s biological father is “no longer in the picture,” and we have no further information on this man or his relationship with the Claimant.

On April XX, 2021, the NH applied for disability insurance benefits. He was awarded disability benefits effective April 2021. On his application, he listed the Claimant as a dependent child. On November XX, 2021, F~ filed for spouse’s insurance benefits on the NH’s record as the NH’s spouse with his child in her care, and child’s insurance benefits on behalf of the Claimant on the NH’s record as his child. On the application, she stated that the Claimant was her niece’s son and that her niece had asked F~ and the NH to adopt him. There is no evidence regarding any agreement to adopt. An agency remarks screen reflects the following statement from F~: “Our son [the Claimant] is really our niece’s son. She was in a very bad situation and had asked us to raise him as our own adopted son. At [the Claimant’s] birth, my husband [the NH] signed the birth record as his father and since his birth, [the Claimant] has been living with us and is our son. We never legally adopted him through the courts.”

The NH made the following statement on the Form SSA-2519: “I consider [the Claimant] my son since birth. My niece and I agreed I would be on the birth certificate as his father because she wanted her baby to go to a relative instead of putting the baby up for adoption. The child’s biological father was no longer in the picture. We took him home from the hospital and since then have raised him as our son. My wife and I are listed on all his records as his natural parents.” The NH checked boxes on the form stating that he listed the Claimant as a dependent on his tax return; took out insurance policies on the child or made the child a beneficiary of his policy; registered the child in school, a place of worship, or signed a report card as a parent; took the child to a doctor’s or dentist’s office and listed himself as the child’s parent; and admitted orally that he was the child’s parent. None of these documents were provided to the agency.^[6]

a. Federal Law: Entitlement to Child’s Insurance Benefits under the Act as a Natural Child Per Section 216(h)(2)(A)^[7]

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on the account of an individual entitled to disability insurance benefits if, among other things, the claimant is the individual’s child.^[8] 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child” as an individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗.359; POMS GN 00306.002. Consistent with your request and the evidence provided, our inquiry focuses on whether the Claimant is the NH’s natural child.^[9]

To determine a claimant’s status as an individual’s natural child, the agency must determine whether the claimant could inherit the individual’s personal property as his child under the intestacy laws of the State where the individual is domiciled at the time the claimant filed the application for benefits. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); POMS GN 00306.010. The NH was domiciled in Texas at the time the application for benefits for the Claimant was filed. Therefore, we apply Texas intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

b. State Law: Paternal Inheritance under Texas Intestate Succession Laws – The Claimant Has Not Proven the Right to Inherit from the NH as his Child

Texas law allows a child to inherit property from his deceased parent by intestate succession. See Tex. Estates Code Ann. §§ 201.001˗.003 (if a person who dies intestate does not have a spouse, the person’s estate passes to the person’s children), 201.051 (maternal inheritance), 201.052 (paternal inheritance). Section 201.052 of the Texas Estates Code, provides as follows for paternal inheritance under intestate succession:

(a) For purposes of inheritance, a child is the child of the child’s biological father^[10] if:

(1) the child is born under circumstances described by Section 160.201, Family Code;

(2) the child is adjudicated to be the child of the father by court decree under Chapter 160, Family Code;

(3) the child was adopted by the child’s father; or

(4) the father executed an acknowledgment of paternity under Subchapter D, Chapter 160, Family Code, or a similar statement properly executed in another jurisdiction.

….

(c) A person may petition the probate court for a determination of right of inheritance from a decedent if the person:

(1) claims to be a biological child of the decedent and is not otherwise presumed to be a child of the decedent; or

(2) claims inheritance through a biological child of the decedent who is not otherwise presumed to be a child of the decedent.

(d) If under Subsection (c) the court finds by clear and convincing evidence that the purported father was the biological father of the child:

(1) the child is treated as any other child of the decedent for purposes of inheritance; and

(2) the child and the child’s issue may inherit from the child’s paternal kindred, both descendants, ascendants, and collateral kindred in all degrees, and they may inherit from the child and the child’s issue.

Tex. Estates Code Ann. § 201.052.

Of relevance to the present claim given the evidence provided, we consider whether the Claimant can inherit from the NH under section 201.052(a)(1) or (4) of the Texas Estates Code.

1. Section 201.052(a)(1) of the Texas Estates Code: There is insufficient evidence to apply the presumption of paternity under sections 160.201(b)(1) and 160.204(a)(5) of the Texas Family Code

As set out above, a child has the right to inherit from a father if the child is born under circumstances described by section 160.201 of the Texas Family Code. Tex. Estates Code Ann. § 201.052(a)(1). Under section 160.201(b) of the Texas Family Code, the father-child relationship is established by:

(1) an unrebutted presumption of paternity of the child under Tex. Fam. Code Ann. § 160.204;

(2) an acknowledgment of paternity in accordance with the Texas Family Code provisions;

(3) a court adjudication of the man’s paternity;

(4) man’s adoption of the child; or

(5) the man’s consenting to assisted reproduction by his wife, which resulted in the child’s birth.

Tex. Fam. Code Ann. § 160.201(b).

There is no court adjudication or adoption, and the consent to assisted reproduction provision has no relevance to this claim. We will consider the requirements for a valid acknowledgment of paternity given the birth certificate evidence separately, as this is also relevant to section 201.052(a)(4) of the Texas Estates Code. See Tex. Fam. Code Ann. § 160.201(b)(2); Tex. Estates Code Ann. § 201.052(a)(4).

As to a presumption of paternity, most of the statutory provisions require a marriage between the child’s mother and father, which we know do not apply here because we know that F~ (the NH’s spouse) is not the Claimant’s mother. See Tex. Fam. Code Ann. §§ 160.201(b)(1), 160.204(a)(1)-(4). The final statutory provision for the presumption of paternity requires that during the first two years of the child’s life, the father continuously resided in the household in which the child resided and he represented to others that the child was his own. Tex. Fam. Code Ann. § 160.204(a)(5). It is possible that the NH could satisfy this presumption of paternity, however, we believe the evidence provided to the agency is insufficient to establish this presumption. The evidence consists of only the Claimant’s Texas birth certificate, F~’s broad statement reflected on an agency remarks screen that the Claimant has been living with her and the NH since his birth, and the NH’s broad statement and his checked boxes on the Form SSA-2519 indicating that he has represented the child to be his own in various documents, but not providing further details on these documents or the documents to the agency. The NH stated on the form SSA-2519 “[m]y wife and I are listed on all his records as his natural parents,” but provided no such documents. Consistent with the instructions on the Form SSA-2519, we requested that the agency seek documentation with regard to the living situation of the NH and the Claimant and as to the NH’s representations to others, including documents identified by the NH on the agency form and any other documents or statements corroborating his claims that the NH represented to others that the Claimant was his child, particularly during the first two years of the Claimant’s life. However, it is our understanding that the agency did not receive any documents or statements.

We believe Texas courts would find there is insufficient evidence to support this presumption of paternity, particularly given the vague circumstances around his birth and minimal information we have as to the Claimant’s biological mother and father. Thus, we believe Texas courts would find that the Claimant has not proven the right to inherit from the NH under Texas intestate succession law based on a presumption of paternity. See Tex. Estates Code Ann. § 201.052(a)(1); Tex. Fam. Code Ann. §§ 160.201(b)(1), 160.204(a)(5).

2. Section 201.052(a)(4) of the Texas Estates Code: The NH has not provided a validly executed acknowledgment of paternity

As set forth above, a child has the right to inherit from a father who has executed an acknowledgment of paternity in accordance with Subchapter D, Chapter 160, of the Texas Family Code. Tex. Estates Code Ann. § 201.052(a)(4). Subchapter D of Chapter 160 of the Texas Family Code sets forth the law regarding voluntary acknowledgment of paternity under the Texas Uniform Parentage Act. See Tex. Fam. Code Ann. §§ 160.301 – 160.315. A child’s mother and a man claiming to be the child’s biological father may sign an acknowledgment of paternity with the intent to establish the man’s paternity as to the child. Tex. Fam. Code Ann. § 160.301. Under Texas law in place as of the Claimant’s birth in 2008 and current law, an acknowledgment of paternity must be in a record; signed or otherwise authenticated under penalty of perjury by the mother and man seeking to establish paternity; state that the child whose paternity is being acknowledged does or does not have a presumed father and that the child does not have another acknowledged or adjudicated father; state whether there has been genetic testing; and state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances. Tex. Fam. Code Ann. § 160.302; see also Tex. Fam. Code Ann. § 160.312(a) (the Texas vital statistics unit prescribes forms for acknowledgment of paternity, denial of paternity, and rescission of an acknowledgment of paternity). Signing an acknowledgment of paternity has significant legal consequences. “[A] valid acknowledgment of paternity filed with the vital statistics unit is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent.” Tex. Fam. Code Ann. § 160.305(a); see also Tex. Fam. Code Ann. § 160.201(b)(2) (a father-child relationship is established by an effective acknowledgment of paternity).

The Claimant’s birth certificate lists the NH as his father. Texas law both in effect at the time of the Claimant’s birth in 2008 and at present provides that the items on a birth certificate relating to a child’s father should only be completed if the child’s mother was married to the father; paternity is established by a court order; or a valid acknowledgment of paternity has been executed by the father and filed with the State’s vital statistics unit. Tex. Health & Safety Code Ann. § 192.005(a). There is no marriage between the NH and the Claimant’s mother (his niece) and no court order. Although the law requires an acknowledgment of paternity be completed before being named on the birth certificate, it is unknown whether the law was followed. The agency was not provided with a copy of a valid acknowledgment of paternity signed by the NH and the Claimant’s mother. Neither the NH nor F~ mention the NH’s signing of an acknowledgment of paternity.

We believe Texas courts would require the validly executed acknowledgment of paternity before allowing inheritance under Texas intestate succession law under section 201.052(a)(4) and would not rely upon the NH’s name being listed on the birth certificate alone. See In re Estate of Douglass, 1994 WL 220347, at *4 (Tex. App. – Houston [1st Dist.] May 26, 1994, writ denied) (“A birth certificate is not conclusive evidence of paternity, however, nor does it establish a presumption of paternity.”). Thus, we believe Texas courts would find that the evidence is insufficient to establish a validly executed acknowledgment of paternity as a basis for inheritance under Texas intestacy law. See Tex. Estates Code Ann. § 201.052(a)(4).

We believe Texas courts would find that the evidence is insufficient to allow Claimant to inherit from the NH as his child under Texas intestate succession law. Therefore, we believe there is legal support for the agency to find that the Claimant has not proven a parent-child relationship under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the NH’s record, and F~’s application for spouse’s insurance benefits on the NH’s record as his spouse with his child in her care.

In general, under Texas law, if the DNA testing and report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99% probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. When a man has died and cannot provide a specimen for genetic testing, Texas law provides that a court may consider the results of genetic testing of the man’s parents, the man’s brothers or sisters, any other of the man’s children, and any other of the man’s relatives necessary to complete genetic testing. As there is no indication that the required percentage of probability is less for genetic testing of the man’s relatives, we apply the same 99% probability threshold for testing of a man’s relatives.

We believe a Texas court would find that the totality of the evidence provided in this case, including DNA testing of the number holder's (NH) relatives and statements from the NH’s mother and the Claimant’s mother, constitutes clear and convincing evidence that the NH is the Claimant’s father. As such, we believe a Texas court would find that the Claimant has proven the right to inherit from the NH under Texas intestate succession law. Therefore, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship with the NH under section 216(h)(2)(A) of the Act effective as of his date of birth on October xx, 2012, for purposes of his application for child’s insurance benefits on the NH’s record.

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder T~ (NH) and the claimant T2~ (Claimant) for purposes of the Claimant’s application for child’s insurance benefits on the NH’s record under the Social Security Act (Act) as his child. Applying section 216(h)(2)(A) of the Act, we address whether a deoxyribonucleic acid (DNA) test report of an alleged paternal grandmother, a DNA test report of an alleged full sibling, and other evidence, is sufficient to establish a parent-child relationship under Texas law. If there is sufficient evidence, you asked for the effective date of the parent-child relationship.

We believe a Texas court would find that the totality of the evidence provided in this case - including DNA testing of the NH’s relatives and statements from the NH’s mother and the Claimant’s mother - constitutes clear and convincing evidence that the NH is the Claimant’s father. As such, we believe a Texas court would find that the Claimant has proven the right to inherit from the NH under Texas intestate succession law. Application of Social Security Ruling (SSR) 06-02p pertaining to sibling DNA testing of the NH’s known child further supports this parent-child determination. Therefore, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship with the NH under section 216(h)(2)(A) of the Act effective as of his date of birth on October 30, 2012, for purposes of his application for child’s insurance benefits on the NH’s record.

The NH Died in 2012

The NH died August xx, 2012, while domiciled in Texas. We located his on-line obituary. See Obituary | T~ | Haynes Mortuary, Inc (last visited March XX, 2022). His obituary states that he is survived by one son, C~ (C~); parents L~ and A~; one brother, J~; and one sister, T3~.

The Agency Awarded Child’s Benefits to C~ as the NH’s Child in 2012

Because a sibling DNA test between C~ and the Claimant was provided as evidence for the Claimant’s claim, evidence regarding the NH’s relationship with C~ is relevant. As noted, the NH’s obituary identifies C~ as his son. It is our understanding that in 2012, C~’s mother, S~ (Applicant), filed an application for surviving child’s insurance benefits on behalf of C~ (born in 2009) on the NH’s record. The NH and the Applicant were not married. It is our understanding that the agency awarded child’s benefits to C~ on the NH’s record as his child with entitlement as of August 2012 upon application of section 216(h)(3) of the Act relying on C~’s Texas birth certificate listing the NH as his father as evidence of the NH’s written acknowledgment of paternity. Although it is unclear if this form was completed in 2012 at the time of C~’s claim, the NH’s mother (L~) completed the Form SSA-2519 Child Relationship Statement in support of the NH’s relationship with C~ on March xx, 2022, to assist with the present claim. She reported that although a court had never decreed the NH to be C~’s father or ordered him to pay child support, the NH took C~ to doctor appointments as his parent; the NH admitted orally that he was C~’s parent; and the NH was making regular and substantial contributions to C~’s support at the time of his death. L~ wrote that the NH “openly told everyone, friends and family, including me that C~ was his child.” Further, she wrote that the NH “took care of C~” and would help buy his clothes, pampers, milk, things he needed, and Christmas and birthday gifts. An agency report of contact dated March xx, 2021, reflects that the Applicant stated the NH had orally agreed to pay weekly child support for C~.

The Applicant Filed for Child’s Benefits for the Claimant as the NH’s Child in 2021

On March xx, 2021, the Applicant filed an application for surviving child’s insurance benefits on the NH’s record on behalf of the Claimant, who was born October xx, 2012, just two months after the NH died. The Applicant provided a copy of the Claimant’s Texas birth certificate, which identifies the Applicant as his mother, does not identify a father, and reflects the Claimant’s last name as R~. The NH was not living with the Applicant or contributing to support at the time of his death on August xx, 2012. The Applicant told the agency that she and the NH had never married but had two sons together – C~ and the Claimant.

Evidence Regarding the Claimant’s Relationship with M~

Although the Claimant’s Numident record shows M~ (M~) as the Claimant’s father and the Claimant’s last name as M~, evidence indicates that M~ is not the Claimant’s legal father under Texas law. As recorded in an agency report of contact dated March xx, 2021, the Applicant advised the agency that she was with M~ at the time the Claimant was born and he “signed the birth certificate.” The Applicant stated that after seeking child support from M~, DNA testing in 2015 revealed that M~ was not the Claimant’s father. She provided a copy of the 2015 DNA testing report showing that M~ had a 0.00% probability of paternity and concluding that M~ was not the Claimant’s biological father. The Applicant stated that she has a court order establishing that M~ is not the Claimant’s father, but she did not provide this order to the agency. The Applicant did provide the agency with an Order for Change of Name entered on February xx, 2019, in the case S~ , as guardian and next friend of T2~, a minor, No. xxx, Circuit Court of Hempstead County, Arkansas, Second Division. The court determined that the Applicant showed reasonable cause for changing the Claimant’s name from M~to T~~ and ordered the change of the Claimant’s last name. The court ordered a new birth certificate showing the child’s last name as T~. As noted, the Claimant’s Texas birth certificate identifies the Applicant as his mother, does not identify a father, and reflects the Claimant’s last name as T~.

Evidence Regarding the Claimant’s Relationship with the NH

Statements

The Applicant completed the Child Relationship Statement (Form SSA-2519) in October 2021 and acknowledged that there was no court order or other written evidence that the NH was the Claimant’s father. She also stated that the NH never admitted orally to anyone that the Claimant was his child, and she confirmed that the NH was not making contributions to support the Claimant at the time he died.

An agency report of contact (Form SSA-5002) reflects a phone conversation with the Applicant on October xx, 2021. The Applicant stated that the NH had one brother – J~. She said that the NH and his brother shared the same mother (L~) but had different fathers. The NH’s obituary also lists only one brother – J~. See Obituary | T~ | Haynes Mortuary, Inc (last visited March xx, 2022). In a handwritten statement from the Applicant dated March xx, 2022, the Applicant stated that she has never had any sexual relations with J~ and that “there is no way possible he could be [the Claimant’s] father.”

February 2022 Full Sibling DNA Testing of the Claimant, C~, and the Applicant

The Applicant provided DNA testing of C~ and the Claimant as she contends that they are full siblings because the NH is the father of both of her sons. A Laboratory Corporation of America (LabCorp) Relationship Report reflects DNA testing of the Applicant (with specimen collected 01/xx/2022), the Claimant (with specimen collected 03/xx/2021), and his purported full sibling C~ (with specimen collected 03/xx/2021) (Sibling DNA Test). The Sibling DNA Test states that LabCorp is accredited by the AABB. The Sibling DNA Test reflects a probability of full sibling versus half sibling as 99.96%. The Sibling DNA Test concludes:

The above study was taken to evaluate if C~ and T2~ have the same biological father. S~, the mother of both children, was also tested. Using African American frequencies, the likelihood ratio for full sibling versus half sibling is 2,249 to 1. This index indicates that C~ and T2~ are 2,249 times more likely to be full siblings as opposed to half siblings. Their probability of relatedness as full siblings is 99.96% as compared with the possibility that they are half siblings. These findings support the allegation that C~ and T2~ have the same biological father.

E`, as authorized by LabCorp, signed the Sibling DNA Test before a notary public and under penalties of perjury on February xx, 2022.

Additional documentation supporting the Sibling DNA Test includes Client Authorization and Chain of Custody documents with a photograph of the Applicant and her signature on January xx, 2022, showing that she consented to the DNA testing and an instruction to add the mother to the testing of the two siblings. A Chain of Custody document reflects that K~ signed and certified under penalties of perjury that on January xx, 2022, she collected the Applicant’s specimen at Healthcare Express in Texarkana, Texas and placed it in a sealed package and mailed it to LabCorp. Someone (signature illegible) from LabCorp certified under penalties of perjury that they received the specimen in a sealed container with no signs of tampering on January xx, 2022 from Federal Express.

Client Authorization and Chain of Custody documents associated with a prior sibling DNA testing of the specimen of the Claimant and C~ in March 2021 includes fingerprints and a photograph purportedly of the Claimant (date of birth 10/xx/2012) and C~ (date of birth 08/xx/2009) and the Applicant’s signature on March xx, 2021, showing that she consented to the DNA testing of her children.^[11] A Chain of Custody document reflects that E~ signed and certified under penalties of perjury that she collected the specimen from the Claimant and C~ at Healthcare Express in Texarkana, Texas and placed their specimen in a sealed package and mailed it to LabCorp. Someone (signature illegible) from LabCorp certified under penalties of perjury that they received the specimen in a sealed container with no signs of tampering from Federal Express on March xx, 2021.

December 2018 Paternal Grandmother DNA Testing of the Claimant, the Applicant, and the NH’s Mother

The Applicant provided DNA testing of the Claimant and the NH’s mother to support her claim that the NH is the Claimant’s father. A LabCorp Relationship Report reflects DNA testing of the Applicant, the Claimant, and L~, the NH’s mother (Paternal Grandmother DNA Test). The Paternal Grandmother DNA Test shows a 99.99% probability that she is the paternal biological grandmother of the Claimant. The Paternal Grandmother DNA Test concludes that “[t]his study supports the allegation that a son of the grandmother is the biological father of the child.” M~, as authorized by LabCorp, signed the Paternal Grandmother DNA Test before a notary public and under penalties of perjury on December xx, 2018.

Chain of custody documentation submitted with the Paternal Grandmother DNA Test includes a photograph purportedly of the Applicant, the Claimant, and L~. The chain of custody documentation shows that J2~ (who printed her name and signed the document) collected the DNA specimen from the Applicant, the Claimant, and L~ on March xx, 2018, at Healthcare Express in Texarkana, Texas and that she packaged the specimen and mailed them via Federal Express. Someone (signature illegible) from LabCorp received the intact package of the specimen from Federal Express on December xx, 2018.

We believe a Texas court would find that the totality of the evidence provided in this case constitutes clear and convincing evidence that the NH is the Claimant’s father. Thus, we believe a Texas court would find that the Claimant has proven the right to inherit from the NH under Texas intestate succession law. Application of SSR 06-02p pertaining to sibling DNA testing of the NH’s known child further supports this parent-child determination. Therefore, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the NH’s record.

In general, under Texas law, if the DNA testing and report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99% probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. If a court finds that genetic testing does not identify or exclude a man as the child’s father, the test results along with other evidence are still admissible to adjudicate the issue of paternity.

In this case, we believe a Texas court would find the paternal grandparent DNA report does not establish the NH's paternity because it does not meet all of the Texas statutory requirements for genetic testing to establish paternity. In addition, we believe a Texas court would find the totality of the evidence provided in this case does not constitute clear and convincing evidence that the NH is the claimant’s father given the inconsistent statements from the claimant’s mother and the NH’s mother, and the absence of information from the NH's mother as to whether she has any other sons who could be the child’s father.

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder P~ (the number holder) and the claimant Z~ (Z~) for purposes of Z~'s application for child’s insurance benefits on the number holder’s record under the Social Security Act (Act) as his child. Specifically, applying section 216(h)(2)(A) of the Act, you asked whether, under Texas law, a deoxyribonucleic acid (DNA) test report of a paternal grandparent (paternal grandparent DNA report), and other evidence, are sufficient to establish a child relationship under Texas law. If so, you inquired as to the effective date of their parent-child relationship. In the alternative, you asked whether the evidence established a biological parent-child relationship between the number holder and Z~ under section 216(h)(3) of the Act for purposes of finding a parent-child relationship.

We believe a Texas court would find the paternal grandparent DNA report does not establish the number holder’s paternity as to Z~ because it does not meet all of the Texas statutory requirements for genetic testing to establish paternity. In addition, we believe a Texas court would find the totality of the evidence provided in this case does not constitute clear and convincing evidence that the number holder is Z~'s father given the inconsistent statements from Z~'s mother and the number holder’s mother and the absence of information from the number holder’s mother as to whether she has any other sons who could be the child’s father. Thus, Z~ has not proven a right to inherit from the number holder under Texas intestate succession law. Therefore, we believe there is legal support for SSA to find that Z~ has not proven a parent-child relationship under section 216(h)(2)(A) of the Act for purposes of her application for child’s insurance benefits on the number holder’s record.^[21]

Furthermore, based on the specific evidence provided with this claim and given the deficiencies with such evidence as noted above, we believe SSA may reasonably conclude that Z~ has not provided satisfactory evidence that she is the number holder’s biological child or sufficient evidence to establish that the number holder was living with her mother at the time of his death as required under section 216(h)(3)(C)(ii) of the Act for purposes of her application for child’s insurance benefits on the number holder’s record.

You advised that the number holder died on September XX, 2017, while domiciled in Texas. On June 17, 2020, B~ filed an application for surviving child’s benefits on Z~’s behalf on the number holder’s record. She provided a paternal grandparent DNA report from the number holder’s mother (P2~), Z~'s birth certificate, and her own statement in support of the application. In addition, the agency spoke on the phone with the number holder’s mother, as reflected in an agency report of contact.

Texas Birth Certificate

Z~ was born to B~ on June XX, 2018. B~alleges that the number holder is Z~'s father, but B~stated that she and the number holder did not marry before the number holder’s death on September XX, 2017. Thus, Z~ was born 8 months and 20 days after the number holder’s death. Z~'s Texas birth certificate lists her mother as B~ and does not list a father.

B~'s Form SSA-795 Statement of Claimant or Other Person and Other Statements to SSA Documented in a Report of Contact

The evidence includes a screenshot of a Report of Contact, in which an SSA field office employee spoke to B~. In this Report of Contact dated July 10, 2020, B~ stated that she was two months pregnant when she told the number holder that she was pregnant with his child. The field office employee asked B~how she could have been two months pregnant when she told the number holder she was pregnant, as Z~ was born approximately nine months after the number holder’s death in September 2017. B~ responded that she remembered telling the number holder that she thought she was pregnant but had not taken a test yet. B~ also stated that the number holder did not tell his mother about her pregnancy, and B~ stated the number holder’s mother did not know her or know that she was pregnant with the number holder’s child. B~ also stated the number holder had no brothers and that the number holder was survived by his mother and father and one sister. B~ stated that the number holder’s father was with another woman and that he had three sons with that woman.

In a Form SSA-795 Statement of Claimant or Other Person dated July 31, 2020, B~ stated that Z~ was the number holder’s daughter. B~ stated that she became pregnant with the number holder’s child prior to his death, and that she and the number holder did not marry prior to the number holder’s death. In addition, B~ stated that the number holder knew she was pregnant before he died because they had discussed it. She stated that she was living with the number holder at the time of his death. B~ further stated that she never had sexual relations with anyone else other than the number holder.

P2~’s Statements to SSA Documented in a Report of Contact

There is also a screenshot of a Report of Contact dated July 28, 2020, in which a SSA field office employee spoke to P2~, the number holder’s mother. P2~ stated that B~ was living with her son at the time of his death. P2~ stated that the number holder told her before he died that B~ was pregnant with his child. The field office employee told P2~ she would send her a Form SSA 795 Statement of Claimant or Other Person to sign and return, but the evidence submitted does not contain a written statement from P2~. The evidence contains a screenshot of a second Report of Contact dated August 28, 2020, when a SSA field office employee spoke with P2~. P2~ stated she could not remember when her son told her that B~ was pregnant with his child, but it most likely was right before he died because they had been talking about him moving back to Louisiana in December 2017. P2~ also stated that she knew B~ was living with the number holder because B~ was there when she went to visit the number holder. P2~ did not report to the agency whether she had any other sons. Further, there is no other evidence indicating whether the number holder had any brothers, such as a funeral program or obituary.

Paternal Grandparent DNA Report as to P2~ and Z~

B~ provided a DNA Test Report from DNA Diagnostics Center, reflecting DNA testing of Z~ (the child), and P2~ (the paternal grandmother) as well as chain of custody documentation for Z~'s sample and P2~'s sample. This one-page paternal grandparent DNA report states that the “likelihood that the alleged relative is the biological relative of the tested child is 3,254 to 1” and “the probability of relatedness” is 99.96%.” The paternal grandparent DNA report was signed on May 29, 2020, by J~, Ph.D., on behalf of DNA Diagnostics Center, and signed by J2~, a Notary Public for the State of Ohio. The paternal grandparent DNA report states that DNA Diagnostics Center is accredited by the American Association of Blood Banks (AABB).

Five pages of documentation for Z~'s specimen associated with the paternal grandparent DNA report includes a DNA Diagnostics Center, Client Identification Form, Chain of Custody document, which shows that S~ signed this document on May 26, 2020, indicating that he collected the specimen from Z~ at Any Lab Test Now in Houston, Texas, and put the specimen in a sealed container. Included with this document is a copy of B~'s driver’s license, and a photo of someone, holding a child, presumably Z~, but the photograph is unsigned and does not identify anyone in the photograph by name. The Chain of Custody form does not indicate what happened to Z~'s specimen after S~ collected it. A person signed a separate form on May 28, 2020, affirming that he or she received a specimen at DNA Diagnostics Center and the specimen container was received sealed and secure. However, this form, which has no title, does not contain the signature of S~, who collected Z~'s DNA specimen, or any identifying information specific to Z~'s DNA specimen. The form also does not specify the method of submission of the DNA specimen to the testing laboratory. In addition, this form contains a space for the time the specimen was received and the printed name and signature of the person who received the specimen, but there is no printed name or time filled in on the form and the signature is illegible.

Five pages of documentation for P2~'s specimen associated the paternal grandparent DNA report includes a DNA Diagnostics Center, Client Identification & Consent Form, Chain of Custody Documentation, which shows that A~ signed this document on May 22, 2020, indicating that she collected the specimen from P2~ at Any Lab Test Now in Shreveport, Louisiana, and put the specimen in a sealed container. J3~ also signed this same Chain of Custody document on May 28, 2020, affirming that he or she received the specimen, and that it was sealed and secure. Included with this document is a copy of P2~'s driver’s license, and a photograph of P2~, which was signed and dated on May 22, 2020 by P2~ and A~.

We believe a Texas court would find the paternal grandparent DNA report does not establish the number holder’s paternity as to Z~ because it does not meet all of the Texas statutory requirements for genetic testing to establish paternity. In addition, we believe a Texas court would find the totality of the evidence provided in this case does not constitute clear and convincing evidence that the number holder is Z~'s father given the inconsistent statements from Z~'s mother and the number holder’s mother and the absence of information from the number holder’s mother as to whether she has any other sons who could be the child’s father. Thus, Z~ has not proven a right to inherit from the number holder under Texas intestate succession law. Therefore, we believe there is legal support for SSA to find that Z~ has not proven a parent-child relationship under section 216(h)(2)(A) for purposes of her application for child’s insurance benefits on the number holder’s record.

Furthermore, under the specific evidence provided with this claim and given the deficiencies with such evidence as noted above, we believe SSA may reasonably conclude that Z~ has not provided other satisfactory evidence that she is the number holder’s biological child or sufficient evidence to establish that the number holder was living with her mother at the time of his death as required under section 216(h)(3)(C) for purposes of her application for child’s insurance benefits on the number holder’s record.

In general, under Texas law, if the DNA testing and report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99% probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. When a man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s brothers or sisters.

Here, because the number holder (NH) is deceased, the evidence includes a paternal uncle DNA report. Even though the paternal uncle DNA testing satisfies the 99% statutory probability requirement, it does not rule out the possibility that one of the number holder’s (NH) other brothers is the child’s biological father. While the paternal uncle DNA test report does not alone establish that the NH is the child’s father, the child’s mother provided other evidence to support the parent-child relationship as to the child and the NH. Nothing in this other evidence suggests one of the other brothers is the child’s father. The totality of the evidence constitutes clear and convincing evidence under Texas law that the number holder is the child’s father, and that the child can inherit from the number holder under Texas intestate succession law.

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder T~ (the number holder) and the claimant K~ (K~) for purposes of K~’s application for child’s insurance benefits on the number holder’s record under the Social Security Act (Act) as his child. Specifically, applying section 216(h)(2)(A) of the Act, you asked whether, under Texas law, a deoxyribonucleic acid (DNA) test report of a paternal uncle (paternal uncle DNA report), and other evidence, including a greeting card and Facebook post, are sufficient to establish a child relationship under Texas law. If so, you inquired as to the effective date of their parent-child relationship. In the alternative, you asked whether the evidence established a biological parent-child relationship between the number holder and K~ under section 216(h)(3) of the Act for purposes of finding a parent-child relationship.

We believe a Texas court would find that the paternal uncle DNA report does not establish the number holder’s paternity as to K~ because it does not identify the number holder specifically as K~’s father in accordance with Texas law on genetic testing. However, we believe a Texas court would find the totality of the evidence provided in this case constitutes clear and convincing evidence that the number holder is K~’s father. Thus, we believe a Texas court would find that K~ has proven a right to inherit from the number holder under Texas intestate succession law. Therefore, we believe there is legal support for SSA to find that K~ has proven a parent-child relationship under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the number holder’s record.^[28]

K~ was born to B~ on April XX, 2011. It is our understanding that B~ and the number holder were never married, but B~ is alleging that the number holder is K~’s father. You advised that the number holder died on October XX, 2014, while domiciled in Texas. On January XX, 2019, B~ filed an application for surviving child’s benefits on K~’s behalf on the number holder’s record.^[29]

Although we do not have a copy of the Texas birth certificate, it is our understanding based on B~’s statements to the agency that no one, including the number holder, is listed as the father on K~’s official birth certificate. B~ stated to the agency that the number holder did not sign K~’s birth certificate because he did not want to pay child support.

In a Form SSA-2519 (Child Relationship Statement) completed on July XX, 2019, B~ reported that a court never decreed the number holder to be K~’s parent or ordered the number holder to contribute to K~’s support, and that the number holder did not make regular and substantial contributions to K~’s child support. She also reported that the number holder never listed K~ as his child in any official documents. However, B~ stated that the number holder admitted orally to his brother, A~, that he was K~’s parent. While B~ also stated that the number holder listed the child in a family tree or record, she clarified in an attached statement that she was referring to the post-mortem publication in the number holder’s funeral program. B~ reasoned that the number holder’s verbal acknowledgement to his family and friends supported their inclusion of K~ as one of the number holder’s survivors in the funeral program. Finally, in the Child Relationship Statement, B~ also stated she provided to the agency other written evidence showing that the number holder was K~’s parent, including the following:

• •

  An April XX, 2011 Message from Social Security (Form SSA-2853-OP3) shows that shortly after his birth, B~ requested a social security number for K~, providing a hyphenated last name that included hers and the number holder’s last names – “K~.”

• •

  A May XX, 2011 “To Whom It May Concern” letter written by B~ with the subject of “verification/update of residency” for apartment number XXXX in the Cypress Lake Community appears to inform the apartment complex that the number holder “has not assumed residency” in the apartment, but that she was adding her son K~ as a new resident in her apartment. In this letter, B~ identifies the number holder as K~’s father.

• •

  A May XX, 2011 Hallmark greeting card states, “Happy 1st Mother’s Day, Love T~ + K~.”

• •

  A June XX, 2011 police report reflects that B~’s grandmother called the police and asked them to check on B~ because she was “afraid that her baby’s father might have hurt her. His name T~.”

• •

  An August or September 2011 Facebook printout^[30] shows that the number holder “shared” B~'s photo album on Facebook and commented on a photo of K~ and B~, stating, “Hi K~, your dad.”

• •

  Documentation from Washington State's Department of Social & Health Services (DSHS) from 2011 and 2012 confirms that B~ claimed that the number holder was K~'s father prior to his death and shows why the number holder was not paying child support for K~.

o As explained in statements from B~ and in information from the DSHS, in June 2011, B~ moved to Washington with K~, alleging she fled to escape the number holder’s domestic violence.

o In July 2011, B~ requested a no contact order from the DSHS and claimed she had good cause not to help the State try to collect child and/or medical support for K~ from the number holder as the non-custodial parent due to a domestic violence threat. She attached letters of support from M~ (the mother of one of the number holder’s other children), A2~ (B~’s cousin), D~ (B~’s former co-worker), and T2~ (B~’s former neighbor), who all supported her claims of domestic violence from the number holder and the threat posed to B~ as well as to K~.

o In an email dated May XX, 2012, B~ reported to the DSHS that she received a voicemail on May XX, 2012 from the number holder in which he stated, “You can’t keep my son away from me.” In response, the DSHS recommended that she obtain a restraining order and file a police report.

o On December XX, 2012,^[31] the DSHS issued a Good Cause Decision finding that B~ did not need help in child and/or medical support collection and her cash assistance could not be reduced for failing to cooperate with the Division of Child Support based on the threat of abuse or harm from the number holder as K~’s non-custodial parent. Further, the DSHS closed the case and stated it would not try to establish paternity, enter a support order, or collect/enforce the non-custodial parent’s support obligation.

• •

  B~ provided the number holder’s funeral program. An obituary included in the number holder’s funeral program lists K~ among the number holder’s survivors. The obituary states: “T~ leaves to cherish his memory, B2, M2, M3, K~, and a Grand Daughter K2.” The obituary also lists A~ as one of the number holder’s brothers.^[32]

In addition to the documents above, B~ provided a Relationship Report from Laboratory Corporation of America, LabCorp Case No. XXX-XXXXXX, reflecting DNA testing of a B~ (as the mother), K~ (as the child), and A~ (as the paternal uncle) as well as chain of custody documentation. This December XX, 2018 paternal uncle DNA report states testing “was undertaken to provide evidence that a brother [the number holder] of the alleged paternal uncle, A~, could be the biological father of the child,K~, whose mother was also tested.” The combined avuncular index is 547 to 1 and the probability of a relationship is 99.82%. The report concludes that “a brother of the alleged paternal uncle, A~, could be the biological father of the child, K~.” The paternal uncle DNA report is signed and notarized on December XX, 2018, by M4~, Ph.D., D-ABC on behalf of Laboratory Corporation of America Holdings, who attested to the truth and correctness of the results in the report under penalty of perjury. The paternal uncle DNA report states that Laboratory Corporation of America Holdings is accredited by the American Association of Blood Banks (AABB).

A Chain of Custody document associated with the paternal uncle DNA report includes a photo of B~ and K~ and appears to show their fingerprints. S~ signed this chain of custody document on December XX, 2017, indicating that she collected the specimens at Alternative Nursing Services, Inc. in Yakima, Washington and put the specimens in a sealed container. J~ signed this form on December XX, 2017, affirming that he or she received the specimens at LabCorp via Federal Express and that the specimen container was sealed with no signs of tampering. A separate Chain of Custody report appears to show A~’s photograph and fingerprint, which J2~ signed on December XX, 2018, indicating that she collected the specimen from A~ at LabCorp in Indianapolis, Indiana and put his specimen in a sealed container. Someone (the signature is illegible) also signed this form on December XX, 2018, affirming that he or she received the specimen at LabCorp via LabCorp courier and that the specimen container was sealed with no signs of tampering.

A. Federal Law: Entitlement to Child’s Insurance Benefits under the Act as a Natural Child Per Section 216(h)(2)(A)

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on an insured individual’s account if, among other things, he is the insured number holder’s child.^[33] See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child” as an insured number holder’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354-.359. Consistent with the scope of your request, our inquiry focuses on whether K~ is the number holder’s natural child. To determine a claimant’s status as a natural child, SSA must determine whether the claimant could inherit the insured number holder’s personal property as his child under the intestacy laws of the state where the insured number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Texas law controls because the number holder’s permanent home was in Texas when he died. Therefore, we apply Texas intestate succession laws to determine whether K~ could inherit from the number holder as his child.

B. State Law: Paternal Inheritance under Texas Intestate Succession Laws

Texas law allows a child to inherit property from his deceased parent by intestate succession. See Tex. Estates Code Ann. §§ 201.001-.003 (if a person who dies intestate does not have a spouse, the person’s estate passes to the person’s children), 201.051 (maternal inheritance), 201.052 (paternal inheritance). Section 201.052 of the Estates Code, provides as follows for paternal inheritance under intestate succession:

(a) For purposes of inheritance, a child is the child of the child’s biological father if:

(1) the child is born under circumstances described by Section 160.201, Family Code;

(2) the child is adjudicated to be the child of the father by court decree under Chapter 160, Family Code;

(3) the child was adopted by the child’s father; or

(4) the father executed an acknowledgment of paternity under Subchapter D, Chapter 160, Family Code,1 or a similar statement properly executed in another jurisdiction.

….

(c) A person may petition the probate court for a determination of right of inheritance from a decedent if the person:

(1) claims to be a biological child of the decedent and is not otherwise presumed to be a child of the decedent; or

(2) claims inheritance through a biological child of the decedent who is not otherwise presumed to be a child of the decedent.

(d) If under Subsection (c) the court finds by clear and convincing evidence that the purported father was the biological father of the child:

(1) the child is treated as any other child of the decedent for purposes of inheritance; and

(2) the child and the child’s issue may inherit from the child’s paternal kindred, both descendants, ascendants, and collateral kindred in all degrees, and they may inherit from the child and the child’s issue.

Tex. Estates Code Ann. § 201.052. As explained next, a court adjudication of paternity is most relevant to the present situation and can establish the right to inherit under section 201.052(a)(1), (2), (c), and (d) of the Texas Estates Code.

1. Texas Court Adjudication of Paternity and the Right to Paternal Inheritance under Section 201.052(a)(1), (2), (c), and (d)

Section 201.052(a)(3) and (4) of the Texas Estates Code do not apply here because the number holder did not adopt K~ or execute an acknowledgment of paternity.

Section 201.052(a)(1) of the Texas Estates Code refers us to section 160.201 of the Uniform Parentage Act (UPA), which is in the Texas Family Code. The only relevant method for establishing paternity under section 160.201(b) of the Texas Family Code that might apply in the present situation is a court adjudication.^[34] See Tex. Fam. Code Ann. § 160.201(b)(3). Section 201.052(a)(2) of the Texas Estates Code also provides for paternal inheritance on the basis of a court adjudication under the provisions of Chapter 160 of the UPA in the Texas Family Code.

Additionally, section 201.052(c) and (d) of the Texas Estates Code provides that for purposes of determining the right to inherit, a probate court can make a paternity determination based on clear and convincing evidence. Thus, all three of these methods under section 201.052(a)(1), (2), (c), and (d) provide for inheritance based on a court determination establishing paternity.

Here, B~ has advised SSA that there is no court order declaring the number holder to be K~s parent. However, SSA regulations do not require an applicant to obtain a state court adjudication. See 20 C.F.R. § 404.355(b)(2). Instead, SSA “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id. Thus, to establish that K~ has a right to paternal inheritance from the number holder under section 201.052(a)(1), (2), (c), and (d), K~ must do so under the standard of proof a Texas state court would use to determine paternity.

2. Whether a Texas Court Would Find the Paternal Uncle DNA Report Rebuttably Identifies the Number Holder as K~’s Father Such that He Must be Adjudicated as the Father

B~ has provided a paternal uncle DNA test to support K~’s relationship with the number holder. Thus, we first consider the standard of proof under Texas law as to genetic tests.

In general, under Texas law, if the DNA testing and report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99% probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code Ann. § 160.505(a); see also Tex. Estates Code Ann. § 204.102 (the presumption under section 160.505 of the Family Code applies to the results of genetic testing ordered under the Estates Code in proceedings to declare heirship), § 204.152 (same). “[T]he man identified as the father of a child under Section 160.505 shall be adjudicated as being the father of the child.” Tex. Fam. Code Ann. § 160.631(b). The results of genetic testing can only be rebutted by other genetic tests. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631; Tex. Estates Code Ann. §§ 204.102, 204.152. Thus, Texas law sets a threshold of 99% probability of paternity that must be met to require a court to adjudicate paternity.

In addition, Texas law requires the genetic testing and reports must meet specific statutory requirements showing reliability and authenticity. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631; see also Tex. Estates Code Ann. §§ 204.001-.201 (genetic testing in proceedings to declare heirship; the genetic testing report must comply with section 160.504 of the Texas Family Code). First, the DNA testing must be in a laboratory accredited by the AABB or another accrediting body designated in the Texas statute. Tex. Fam. Code Ann. § 160.503(a). Second, the genetic testing results must be in a record and a laboratory designee must sign the DNA report under penalty of perjury. Tex. Fam. Code Ann. § 160.504(a). Third, testimony or documentation must establish a reliable, five-part chain of custody meeting these requirements: (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Tex. Fam. Code Ann. § 160.504(b)(1)-(5).

When a man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s brothers or sisters. See Tex. Fam. Code Ann. § 160.508(a)(2); Tex. Estates Code Ann. § 204.054. If the genetic testing identifies more than one man as the possible father of the child, a Texas court may order each of those men to undergo further genetic testing to identify the genetic father. Tex. Fam. Code Ann. §§ 160.505(c), 160.508; Tex. Estates Code Ann. § 204.054.

Here, as Texas law allows because the number holder is deceased, the evidence includes a paternal uncle DNA report. The paternal uncle DNA report shows a combined avuncular index of 547 to 1 and a relationship probability of 99.82% that a brother of A~ is K~’s father. See Tex. Fam. Code Ann. § 160.505(a)(1) (requiring paternity to be established at least at 99% probability). However, in addition to A~, the number holder’s funeral program identified four other men as the number holder’s—and presumably, A~’s—potential brothers.^[35] Thus, even though the DNA testing satisfies the 99% statutory probability requirement, it does not identify specifically which of A~'s brothers is K~’s father. Rather, it shows only a familial relationship between A~ and K~; therefore, it does not rule out the possibility of one of the four other potential B3~ brothers being K~’s biological father.^[36]

In summary, the paternal uncle DNA report does not rebuttably identify the number holder as K~’s father given the existence of the number holder’s other brothers. Because the testing and report do not meet all of the Texas statutory requirements for genetic testing, the paternal uncle DNA report would not require a court to adjudicate the number holder as K~’s father. See Tex. Fam. Code Ann. § 160.631(c) (“the man identified as the father of a child under Section 160.505 shall be adjudicated as being the father of the child.”). Our analysis does not end here, however. If a court finds that genetic testing does not identify (or exclude) a man as the child’s father, the test results along with other evidence are still admissible to adjudicate the issue of paternity. Tex. Fam. Code Ann. § 160.631(e); Tex. Estates Code Ann. § 204.153. While Section 160.631(e) of the Texas Family Code does not speak to the standard of proof, Texas courts have determined that under Texas law, a child’s paternity after the death of the father is established under the clear and convincing evidence standard of proof. See In re Interest of A.S.L., 923 S.W.2d 814, 818 (Tex. App. – Amarillo 1996, no writ) (applying the clear and convincing evidence standard of proof to determine paternity under the Texas Family Code after the father’s death). Additionally, as noted above, section 201.052(c) of the Texas Estates Code expressly provides that for determining the right to inherit, a probate court may make a paternity determination based on clear and convincing evidence of paternity. Thus, we next consider whether the totality of the evidence, including the paternal uncle DNA report, satisfies the clear and convincing standard of proof to establish that the number holder is K~’s father and that K~ has the right to inherit from the number holder as his child.

3. Whether a Texas Court Would Find Clear and Convincing Evidence that the Number Holder is K~’s Father

Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”^[37] Villery v. Solomon, 16 S.W.3d 106, 107 (Tex. App. – Houston [1st Dist.] 2000, no pet.); see Tex. Fam. Code Ann. § 101.007. In cases involving proof of paternity, the fact finder must decide in each case whether the evidence presented is clear and convincing. Garza v. Maverick Mkt., Inc., 768 S.W.2d 273, 275-76 (Tex. 1989) (holding that in a wrongful death action an alleged child must have the opportunity to prove by clear and convincing evidence that he is the deceased’s child). In Garza, the Texas Supreme Court listed some of the potential evidence an alleged child may use to prove paternity, including: blood or genetic tests; evidence of physical resemblance of the child to the alleged father; prior statements by the alleged father that he was the father of the child, or other admissions by him bearing on his relationship to the child; and evidence of periods of conception and gestation. Id. at 276; see also In re Interest of B.M., 570 S.W.2d 493, 501 (Tex. Civ. App.—Texarkana 1978, no writ). However, the Texas Supreme Court concluded that it could not predict whether some or all of this evidence would rise to the level of clear and convincing evidence in any particular case. Id. Therefore, we must determine whether a Texas court would find that the totality of the evidence provided here satisfies the clear and convincing evidence standard to establish that K~ is the number holder’s child.

We addressed the paternal uncle DNA report in detail above. The paternal uncle DNA report establishes a clear familial relationship between the paternal uncle, A~ (the number holder’s brother), and K~, but it does not identify which of A~’s brothers is K~’s father. Thus, a Texas court would likely need DNA testing of the number holder’s four other brothers or other evidence regarding B~’s relationship with the brothers to rule them out as K~’s father if the court were to decide the issue based upon the paternal uncle DNA report alone.^[38] See Tex. Fam. Code Ann. §§ 160.505(c), 160.508; Tex. Estates Code Ann. § 204.054. Here, however, B~ has provided other evidence to support the parent-child relationship as to K~ and the number holder. Importantly, nothing in this other evidence suggests one of the other brothers is instead K~’s father.

There are documents dated around K~’s birth and from prior to the number holder’s death that are consistent with B~’s contention that the number holder (and not one of the brothers) was K~’s father and reflect that she undertook actions consistent with this contention during the number holder’s lifetime. B~ claims that the number holder lived with—and supported—her while she was pregnant and shortly after K~’s birth. She provided an email from a next-door-neighbor, T2~, from July 2011 confirming that the neighbor witnessed and overheard arguments between B~ and “her partner,” the number holder, while B~ was pregnant and after K~ was born. An SSA message dated the week after K~'s birth in April 2011 indicates that B~ initially gave K~ the number holder’s last name as she requested a social security card for “K~” Although this does not rule out one of the other B3~ brothers as K~’s father, it supports B~’s assertion that the number holder was K~’s father.

B~ did not identify the number holder as K~’s father on his birth certificate,^[39] nor did she seek state-sponsored support for K~ from the number holder. However, B~ alleged that she did not seek such support or put the number holder’s name on official documents due to a potential for abuse by the number holder, which the Washington DSHS determined was good cause for a no contact order. Additionally, B~ claims that the number holder refused to sign K~’s birth certificate because he did not want to pay support, and not because he denied paternity.

The Washington DSHS documentation from 2011 and 2012 confirms that shortly after K~’s birth, B~ identified to DSHS that the number holder (and not one of his brothers) was K~’s father, reported to DSHS that she had to leave the State due to alleged domestic violence by the number holder, and requested that DSHS find that she had good cause in not helping the DSHS Division of Child Support try to collect child support from the number holder due to his threats of violence. A June 2011 police call report reflects that when B~’s grandmother called the police to report that she was afraid that B~’s “baby’s father” might have hurt B~, she identified the number holder as the baby’s father. This police call report shows that B~ was going to seek child support from the father—the number holder—and that made him angry.

There are several pieces of evidence indicating the number holder’s recognition that K~ was his child during this lifetime. A May 2011 greeting card wishes B~ a happy Mother’s Day and is signed, “Love T~ + K~.” B~ claims the number holder signed and gave her the greeting card.^[40]

In an August or September 2011 Facebook post, the number holder appears to acknowledge K~’s paternity by “sharing” B~’s photo album containing pictures of K~ and signing a comment to K~, “your dad.” A May 2012 email exchange between Washington DSHS and B~ reflects that she reported that the number holder left her a voicemail message on May XX, 2012, in which he stated, in reference to K~. “You can’t keep my son away from me.”

Finally, the number holder’s funeral program implies that he was K~’s father: “T~ leaves to cherish his memory, B2~, M2~, M3~, K~ and a Grand Daughter K2~.” Although there is no indication that the number holder took any part of writing his obituary and while it does not explicitly list K~ as his child, it implies that K~ is his child because there is evidence that at least one other child in that list, M2~, is the number holder’s child. B~ also claims that she included K~ in the obituary because the number holder admitted paternity orally to his brother, A~ as well as “to friends and family.” There is no information that any one of the other brothers identified in the funeral program is claiming that he, instead of the number holder, is K~’s father.

Thus, the totality of these documents reflects actions B~ and the number holder took during his lifetime that are consistent with B~’s current claim that the number holder (and not a brother) is K~’s father. The record reflects multiple instances where the number holder appears to have admitted paternity (orally to B~ and his family, on social media, and in a greeting card given to B~). Perhaps more importantly, there is no evidence that the number holder ever denied paternity and no evidence that one of his brothers claimed paternity as to K~.^[41]

Although B~’s statements are not all supported by documentary evidence, Texas courts have assigned weight to the mother’s statements and found such corroborating evidence unnecessary to meet the clear and convincing standard for paternity determinations under the Estates Code. See, e.g., Villery, 16 S.W.3d at 108 (finding clear and convincing evidence of paternity despite conflicting evidence because statements supporting paternity were found credible); McNary v. Khan, 792 S.W.2d 126, 127 (Tex. App.—Dallas 1990, no writ) (considering mother’s statements of paternity as one of the factors in considering whether a court could find paternity by clear and convincing evidence). Moreover, Texas courts have indicated that an inheritance statute such as the one at issue here should be construed liberally “to effectuate its purpose.” Matherson v. Pope, 852 S.W.2d 285, 290 (Tex. App.—Dallas 1993, writ denied); see also Tipps, 768 F.Supp. at 580 (“While proof under clear and convincing evidence must weigh heavier than merely the greater weight of credible evidence, there is no requirement that evidence must be unequivocal or undisputed.”).

Accordingly, we believe the totality of the evidence—including B~’s statements, the number holder’s acknowledgements, the paternal uncle DNA report clearly showing a familial relationship between K~ and the number holder’s brother A~, the multiple reports in support of the DSHS no contact order referencing the number holder as K~’s father, and the implication of a parent-child relationship between the number holder and K~ in the number holder’s funeral program—would instill a firm belief or conviction in a fact finder that the number holder was K~s biological father. Therefore, we believe a Texas court would find that K~ would inherit from the number holder as his child under Texas intestate succession laws. See Tex. Estates Code Ann. § 201.052(a)(1), (2), (c), (d). As a result, SSA may reasonably conclude K~ is the number holder’s natural child under section 216(h)(2)(A) of the Act for purposes of his application for child’s insurance benefits on the number holder’s record.

C. Effective Date of Parent-Child Relationship

Agency policy distinguishes among legitimate, illegitimate, and legitimated children and differences with the effective date of the parent-child relationship, but Texas law does not use the terms legitimate or illegitimate or provide a mechanism for legitimating a child. See POMS GN 00306.001(H) (defining “illegitimate child”), (M) (defining “legitimate child”), (N) (defining “legitimizing event”), GN 00306.050(A)(3) (“a child legitimated after birth is considered to be legitimate from birth”), GN 00306.055(A)(1) (distinguishing between a legitimated child and an illegitimate child with inheritance rights), (3) (“An act/event conferring inheritance rights generally has effect only from the date of such act/event. . . . If a provision . . . shows that a State law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant’s status as the NH’s child is established effective with” the dates of the evidence submitted.). Once the parent-child relationship is established under Texas law, the effective date of the parent-child relationship is established as of the child’s birth regardless of the parents’ marital status and regardless of the method or type of evidence establishing the parent-child relationship. See Tex. Estates Code Ann. § 201.052; Tex. Fam. Code Ann. § 160.202. Thus, the effective date of the parent-child relationship between the number holder and K~ is K~’s date of birth, April XX, 2011.

Based on the information provided to the agency, we believe that a Texas court would conclude that, while the paternal uncle DNA test report does not alone establish that the number holder is K~’s father, the totality of the evidence constitutes clear and convincing evidence under Texas law that the number holder is K~’s father, and that K~ can inherit from the number holder under Texas intestate succession law. Therefore, there is legal support for the agency to find that K~ is the number holder’s child for purposes of determining his entitlement to child’s insurance benefits on the number holder’s account as the number holder’s child as of April XX, 2011.

We have court orders establishing the number holder’s (NH) paternity as to the Claimant and a subsequent contradictory court order establishing the NH’s nonparentage as to the Claimant based on DNA testing.

In weighing the conflicting evidence, we believe there is legal support for the agency to defer to the 2005 Child Support Review Order and 2007 Final Decree of Divorce adjudicating the NH’s paternity as to the Claimant, as these orders are consistent with state law, and the 2014 Adjudication of Nonparentage appears to be contrary to state law as an improper attack on these prior final judgments. Deferring to these earlier state court orders, we believe that a Texas court would find that the Claimant has established a right to inherit under Texas laws of intestacy from the NH as his child through unappealed, unchallenged final judgments adjudicating the NH as the Claimant’s father. Therefore, we believe there is legal support for the Social Security Administration (SSA or agency) to find that the Claimant has proven a parent-child relationship with the NH under section 216(h)(2)(A) of the Act for purposes of her application for child’s insurance benefits on the NH’s record.

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the number holder V~ (the NH) and the Claimant J~ (the Claimant), a minor, for purposes of the Claimant’s application for child’s insurance benefits on the NH’s record under the Social Security Act (Act) as his child. Specifically, applying section 216(h)(2)(A) of the Act, you asked whether the evidence, which includes competing state court orders regarding parentage, is sufficient to establish a parent-child relationship under Texas law, such that the Claimant could inherit as the NH’s child under Texas intestate succession law, or instead, whether the evidence establishes that the Claimant is not the NH’s child and does not have the right to inherit as the NH’s child under Texas law.

We believe a Texas probate court would find that the Claimant has proven a parent-child relationship with the NH through court adjudications declaring that the NH is the Claimant’s father. Thus, the Claimant has proven a right to inherit from the NH as her adjudicated father under Texas intestate succession law. Therefore, we believe there is legal support for the Social Security Administration (SSA or agency) to find that the Claimant has proven a parent-child relationship with the NH under section 216(h)(2)(A) of the Act for purposes of her application for child’s insurance benefits on the NH’s record.

As we understand the facts, the Claimant was born out of wedlock in Fort Worth, Texas, on November XX, 2001. Her original Texas birth record, filed December XX, 2000, lists F~ (the Applicant) as the Claimant’s mother, but does not list a father.

Another child, J2~, was born to the Applicant in Fort Worth, Texas, on December XX, 2001. A State of Texas Acknowledgment of Paternity, signed by the NH and the Applicant on December XX, 2001 (and received by the Texas Department of Health Bureau of Vital Statistics on January XX, 2002), declares that the NH is J2~’s biological father and shows that the NH and the Applicant lived together on Hardeman Street in Fort Worth, Texas. J2~’s Texas birth certificate, filed January XX, 2002, lists the Applicant as the mother and the NH as the father.^[42]

As evidenced by a Texas marriage license and certificate, on March XX, 2002, the Applicant and the NH married. It appears that at some point before November 2005, they separated.

On November XX, 2005, the 233rd District Court of Tarrant County, Texas issued a “Child Support Review Order (Suit Affecting and Establishing the Parent-Child Relationship)” (2005 Child Support Review Order) in the case In the Interest of J ~ and J2~, Children, Cause No. 233 393988 05, noting that the Claimant and J2~ were the children subject of the suit and identifying the Applicant as the children’s mother and the NH as the children’s father. Under a section entitled “Parentage,” the 2005 Child Support Review Order finds that the NH was the Claimant’s biological father (and J2~'s biological father) and directs the Claimant’s birth record be amended to show the NH as the father and the Claimant’s surname be changed to M~. The 2005 Child Support Review Order further finds that the NH, as the children’s father, has a duty of support; appoints the Applicant and the NH as joint managing conservators of the Claimant and J2~; and sets out the NH’s and the Applicant’s rights to possession and access to the Claimant and J2~. The NH and the Applicant signed this 2005 Child Support Review Order, thereby agreeing to its entry.

As evidenced by a Final Decree of Divorce (2007 Final Decree of Divorce) issued by a district court in Tarrant County, Texas on May XX, 2007, in In the Matter of the Marriage of F~ and V~ and In the Interest of J~ and J2~, Cause No. 415439-07, F~ and the NH divorced. The Final Decree of Divorce orders and decrees that the NH and the Applicant are divorced and finds specifically as to “children of the marriage” that the Applicant and the NH were the parents of the Claimant and J2~. The NH and the Applicant signed the Final Decree of Divorce.

There is no documentation dated during the next seven years, and thus, we assume the NH was continuing to pay child support and otherwise parent the Claimant over these years in accordance with the 2005 Child Support Review Order and 2007 Final Decree of Divorce.

On June XX, 2014, the 233rd District Court of Tarrant County, Texas issued a First Amended Order for Parentage Testing (2014 First Amended Order for Parentage Testing) in the case In the Interest of J~ and J2~, Children, Cause No. 233 393988 05,^[43] ordering the NH and the Claimant to undergo parentage testing (DNA testing) at LabCorp in North Richland Hills, Texas.^[44] Although there is a space for their signatures, neither the NH nor the Applicant signed this First Amended Order for Parentage Testing. A LabCorp, Laboratory Corporation of America, “Relationship Report” (DNA report) shows that DNA testing was performed on the Claimant and the NH in June and July 2014 and shows a probability of paternity of 0%. The DNA report states that “[t]hese results indicate that [the NH] is not the biological father of the child, [the Claimant].”^[45]

On August XX, 2014, the same court issued an Adjudication of Nonparentage (2014 Adjudication of Nonparentage) stating that a hearing was held on August XX, 2014 and that the NH appeared in person, pro se, but that the Applicant, although notified, did not appear. In this 2014 Adjudication of Nonparentage, the court admitted the DNA report and found that the DNA tests excluded the NH as the biological father of the Claimant, adjudicated that the NH was not the Claimant’s father, and ordered that the Claimant’s birth records be amended to show the NH was not the Claimant’s father. We note that the Claimant, born in November 2000, was almost 14 years old at the time of this order. As detailed next, through 2015 and 2017 orders, the NH continued to be obligated to pay child support for the Claimant even after this 2014 Adjudication of Nonparentage.

The NH filed for disability benefits on May XX, 2015, listing J2~ and E~ (but not the Claimant) as dependent children. The agency awarded the NH disability benefits effective July 2014.

On May XX, 2015, the same court that had issued the 2014 Adjudication of Nonparentage in the same case issued a Temporary Order in Suit for Modification of Support Order and to Confirm Child Support Arrearage (Temporary Order for Child Support), noting that the Applicant and the NH appeared in person at a hearing, that the children subject of the suit were the Claimant and J2~, and that in the 2005 Child Support Review Order, the court had ordered the NH to pay child support and medical support monthly beginning December XX, 2005. The Temporary Order for Child Support ordered that the NH continue to pay child support and continued to reflect both the Applicant and the NH as joint managing conservators. Neither the NH nor the Applicant signed this Temporary Order for Child Support.

On September XX, 2015, the same court issued an Agreed Order in Suit for Modification of Support Order and to Confirm Support Arrearage (September 2015 Agreed Child Support Order) in the same case, which continued to identify the Claimant and J2~ as the children at issue in the suit, noting that the NH had been obligated to pay child support with the 2005 Child Support Review Order, and finding specifically that the NH “still has a duty of support to [the Claimant].” The court also ordered that the NH should “receive possession credits for the [child support arrears] for the months of September XX, 2014 through December XX 2014,” which indicates that the Claimant was living with the NH during this period. Both the NH and the Applicant signed this September 2015 Agreed Child Support Order.

On May XX, 2017, the Applicant filed an application for child’s benefits on behalf of the Claimant on the NH’s record as his child. The agency awarded benefits to the Claimant effective May 2016. The NH then contacted the agency and provided the above 2014 DNA report excluding him as the Claimant’s biological father.

On September XX, 2017, the 231st District Court of Tarrant County, Texas issued an Order in Suit for Modification of Support Order and to Confirm Support Arrearage (September 2017 Child Support Order) in the case In the Interest of J~ and J2~, Children, Cause No. 231-415439-07. This September 2017 Child Support Order identifies the children at issue to be both the Clamant and J2~; finds that the court ordered the NH to pay child support and medical support beginning back in October XX, 2015 per the September 2015 Agreed Child Support Order; finds that the NH is not an arrears; and notes that since the September 2015 Agreed Child Support Order, there has been a substantial change in conditions. This September 2017 Child Support Order finds that the NH is obligated to provide support for the Claimant and J2~, but beginning August XX, 2017, ordering the NH to pay $0.00 in child support for the Claimant (and J2~) because "[t]he children receive a monthly social security payment of $440.00 as a result of [the NH’s] disability.” This September 2017 Child Support Order states that both the NH and the Applicant signed and agreed to the order.

A. Federal Law: Entitlement to Child’s Insurance Benefits under the Act as a Natural Child Per Section 216(h)(2)(A)

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on an insured individual’s account if, among other things, she is the insured number holder’s child.^[46] See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child” as an insured number holder’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Consistent with the scope of your request, our inquiry focuses on whether the Claimant is the number holder’s natural child. To determine a claimant’s status as a natural child, SSA must determine whether the claimant could inherit the insured number holder’s personal property as his child under the intestacy laws of the state where the insured number holder had his permanent home at the time of the claimant’s application. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Texas law controls because the NH’s permanent home was in Texas when the Claimant filed the application. Therefore, we apply Texas intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

B. State Law: Paternal Inheritance under Texas Intestate Succession Laws

Texas law allows a child to inherit property from his deceased parent by intestate succession. See Tex. Estates Code Ann. §§ 201.001-003 (if a person who dies intestate does not have a spouse, the person’s estate passes to the person’s children), 201.051 (maternal inheritance), 201.052 (paternal inheritance). Section 201.052 of the Estates Code, pertaining to paternal inheritance, states that for the purpose of intestate inheritance, a child is his biological father’s child and may inherit if: (1) the child was born under circumstances described in section 160.201^[47] of the Texas Family Code, which includes a court adjudication of a man’s paternity; (2) the father was adjudicated to be the child’s father by court decree as provided by Chapter 160 of the Texas Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity under Subchapter D of Chapter 160 of the Texas Family Code; or, (5) a probate court finds by clear and convincing evidence that the purported father was the child’s biological father. Tex. Estates Code Ann. § 201.052(a), (c)-(d).^[48]

Here, relevant to methods (1) and (2) above for paternal inheritance, we have adjudications establishing the NH’s paternity as to the Claimant and a subsequent contradictory adjudication establishing the NH’s nonparentage as to the Claimant based on DNA testing. We next consider this conflicting evidence under Texas law as it relates to the adjudication of paternity addressed in methods (1) and (2) of section 201.052(a) of the Texas Estates Code for paternal inheritance.

Consistent with Social Security Ruling (SSR) 83-37c, in weighing these conflicting state court adjudications as to paternity, we consider whether the state court orders bind the agency by considering certain factors (the Gray factors), outlined below. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson). As detailed next, none of the Texas orders meets all factors, thus binding the agency, but we believe there is reason to defer to the 2005 and 2007 adjudications finding the NH was the Claimant’s father for the reasons explained below.

1. Evidence Supporting Paternity: 2005 Child Support Review Order and 2007 Final Decree of Divorce

There are two state court orders supporting the NH’s paternity as to the Claimant in this case: the 2005 Child Support Review Order, and the 2007 Final Decree of Divorce, both of which contained adjudications that the NH was the Claimant’s father. The NH signed and agreed to both of these orders.

Generally, a state court decision does not bind the agency if it involves a proceeding to which the agency was not a party. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Pursuant to SSR 83-37c, which adopts the Sixth Circuit’s Gray decision, state court determinations of domestic relations matters are entitled to deference and bind the agency only if the following four factors are satisfied:

1. an issue in a claim for Social Security benefits was previously adjudicated by a state court of competent jurisdiction;

2. the issue was genuinely contested before the state court by parties with opposing interests;

3. the issue falls within the general category of domestic relations law; and

4. the resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

SSR 83-37c.^[49]

a. The 2005 Child Support Review Order and the 2007 Final Decree of Divorce Satisfy Gray Factors One and Three: An Issue in a Claim for Social Security Benefits Previously Adjudicated by a State Court of Competent Jurisdiction and the Issue Falls within Domestic Relations Law

The 2005 Child Support Review Order and the 2007 Final Decree of Divorce adjudicating the NH as the Claimant’s father satisfy the first and third Gray factors because Texas district courts are courts of competent jurisdiction in the domestic relations matter of paternity, which is an issue in this claim for child’s insurance benefits. See Tex. Const. Art. 5, § 8; Tex. Gov’t Code Ann. §§ 24.007, 24.008, 24.410, 24.601.

b. The 2005 Child Support Review Order and the 2007 Final Decree of Divorce Satisfy Gray Factor Four: Consistent with Texas Law on Adjudications of Parentage

We also believe the 2005 Child Support Review Order and the 2007 Final Decree of Divorce satisfy the fourth Gray factor as being consistent with Texas law regarding adjudications of parentage. Texas law defines an “adjudicated father” as “a man who has been adjudicated by a court to be the father of a child.” Tex. Fam. Code Ann. § 160.102(1). There is no specific requirement concerning the form of the court proceeding or order, and paternity may be established in any suit affecting the parent-child relationship. See id; see also Tex. Fam. Code Ann. § 101.032 (defining a suit affecting the parent-child relationship), § 160.601 (authorizing civil proceedings to adjudicate the parentage of a child), § 160.602 (identifying who has standing to maintain a proceeding to adjudicate parentage, including a child, the child’s mother, and a man whose paternity is to be adjudicated, § 160.603 (the child’s mother and the man whose paternity is to be adjudicated must be joined as parties to the proceeding), § 160.604 (the court must have personal jurisdiction). A father in a proceeding to adjudicate parentage may admit to the child’s paternity, and if the court finds that there is no reason to question the admission, the court shall render an order adjudicating the child to be the child of the main admitting paternity. See Tex. Fam. Code Ann. § 160.623. The court shall render an order adjudicating whether the man alleged or claiming to be the father is the parent of the child. Tex. Fam. Code Ann. § 160.636(a). In general, an order adjudicating parentage is valid if: (1) it identifies the child by name and date of birth; and (2) the court orders the issuance of an amended birth record, if the existing one is at odds with the adjudication. Tex. Fam. Code Ann. § 160.636. A Texas district court can adjudicate parentage in a proceeding to dissolve a marriage where the final order either expressly identifies the child as a child or issue of the marriage, or provides for the payment of child support (unless the order specifically disclaims paternity). Tex. Fam. Code Ann. § 160.637(c); Tex. Gov’t Code Ann. § 24.601. Thus, the agency can reasonably assume the Texas Supreme Court would uphold adjudications of parentage in a divorce proceeding consistent with state law. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (upholding an adjudication of parentage in an uncontested divorce proceeding).

Here, the 233rd District Court of Tarrant County, Texas adjudicated the NH to be the Claimant’s father in the 2005 Child Support Review Order (in a suit affecting the parent-child relationship) in accordance with the above criteria in that the court expressly found the Claimant, identified by name and date of birth, to be NH’s child, and ordered the issuance of an amended birth record to show the NH as the Claimant’s father. The 2005 Child Support Review Order further found that the NH, as the children’s father, had a duty of support beginning on December XX, 2005; appointed the Applicant and the NH as joint managing conservators of the Claimant (and J2~); and set out the NH’s and the Applicant’s rights to possession and access to the Claimant (and J2~). The 2007 Final Decree of Divorce, issued by an unidentified district court in Tarrant County, Texas in a divorce proceeding, also met the above requirements in that it expressly found as to “children of the marriage” that the Applicant and the NH were the parents of the Claimant (and J2~), identified the Claimant, by name and date of birth, and provided for the NH’s support of the child.^[50] The NH and the Applicant both signed and agreed to the terms of both orders, indicating that the NH admitted to his parentage of the Claimant.

Thus, we believe that these orders are consistent with Texas law regarding paternity adjudications and satisfy the fourth Gray factor. See In Interest of J.A.C., 2018 WL 2191604, at *4 (Tex. App. – Dallas May 14, 2018, no pet.) (the divorce proceeding included an adjudication of paternity); In re R.J.P., 179 S.W.3d 181, 183-185 (Tex. App. – Houston [14th Dist.] 2005, no pet.) (the agreed child support order finding the father to be the child’s biological father and providing for child support, conservatorship, and visitation was an adjudication of paternity).

c. The 2005 Child Support Review Order and the 2007 Final Decree of Divorce Do Not Satisfy Gray Factor Two: Genuinely Contested

However, we believe that the 2005 Child Support Review Order and the 2007 Final Decree of Divorce do not meet the second Gray factor—that parties with opposing interests genuinely contested the issue before the state court. To be genuinely contested, an issue must be disputed by parties with opposing interests. See Gray, 474 F.2d at 1373. Both parties signed and agreed to both the 2005 Child Support Review Order and the 2007 Final Decree of Divorce. The 2005 Child Support Review Order explicitly states that it was the result of a negotiation conference between the parties, while the 2007 Final Decree of Divorce explicitly states that it was an adoption of an agreement by the parties. Thus, we believe the agency could reasonably conclude that neither order was genuinely contested and the second Gray factor was not met. See George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (finding order was not genuinely contested where no evidence was presented or material controversy resolved).

d. Summary: The 2005 Child Support Review Order and the 2007 Final Decree of Divorce Are Not Binding on SSA

Thus, the 2005 Child Support Review Order and the 2007 Final Decree of Divorce adjudicating NH to be the Claimant’s father do not clearly meet all four Gray factors and are therefore not binding on SSA. Although such orders do not bind the agency, such orders are still relevant to determining whether the Claimant can inherit as the NH’s child under Texas law. In considering the totality of the evidence, we next consider the evidence contradicting the NH’s parent-child relationship with the Claimant.

2. Evidence Contradicting Paternity: 2014 Adjudication of Nonparentage and DNA Testing

To disprove his paternity as to the Claimant, the NH has provided the 2014 Adjudication of Nonparentage and the DNA testing on which the court based the order. We next consider whether the 2014 Adjudication of Nonparentage binds the agency in accordance with SSR 83-37c.

a. The 2014 Adjudication of Nonparentage Satisfies Gray Factors One and Three: An Issue in a Claim for Social Security Benefits Previously Adjudicated by a State Court of Competent Jurisdiction and the Issue Falls within Domestic Relations Law

As with the above orders adjudicating parentage, the 2014 Adjudication of Nonparentage, which adjudicates that the NH was not the Claimant’s father, satisfies the first and third Gray factors because Texas district courts are courts of competent jurisdiction in the domestic relations matter of paternity, which is an issue in this claim for child’s insurance benefits. See Tex. Const. Art. 5, § 8; Tex. Gov’t Code §§ 24.007, 24.008, 24.410, 24.601.

b. The 2014 Adjudication of Nonparentage Does Not Appear to Satisfy Gray Factor Two: Genuinely Contested

There is some question as to whether the 2014 Adjudication of Nonparentage meets the second Gray factor—that parties with opposing interests genuinely contested the issue before the state court. The Adjudication states that the Applicant was duly notified, but failed to appear. It is unclear whether a failure to appear means the adjudication was not genuinely contested, and thus, it is unclear whether the second Gray factor was met with respect to the 2014 Adjudication of Nonparentage.

c. The 2014 Adjudication of Nonparentage Does Not Satisfy Gray Factor Four: Inconsistent with Texas Law on the Final Binding Effect of Prior Adjudications of Parentage

More importantly, however, as to the fourth Gray factor, we do not believe the 2014 Adjudication of Nonparentage is consistent with Texas law to the extent it improperly purports to change the parent-child relationship between the NH and the Claimant, as already established under the 2005 Child Support Review Order and 2007 Final Decree of Divorce. As noted, the NH was a party to each of those parentage matters, and he signed and agreed to both the 2005 Child Support Review Order and 2007 Final Decree of Divorce determining that he was the Claimant’s father. Texas law provides that a determination of parentage, such as in the 2005 Child Support Review Order and the 2007 Final Decree of Divorce, is binding on all parties to an adjudication by a court. Tex. Fam. Code Ann. § 160.637(a); see In re R.J.P., 179 S.W.3d at 185 (determining that the finding within the agreed order that the husband was the child’s biological parent was an adjudication that the husband was a parent and had binding effect of a final judgment rendered at the conclusion of an adversary proceeding, such that collateral estoppel and res judicata barred the father from relitigating the issue of his biological paternity in a later suit). There are two ways in which the NH could have legally challenged these prior binding determinations of paternity, as addressed next.

First, he could have appealed the judgments, but the evidence provided indicates that he did not. Texas law provides that a party to an adjudication of paternity may challenge that finding “only under the laws of this state relating to appeal, the vacating of judgments, or other judicial review.” Tex. Fam. Code Ann. § 160.637(e). Thus, an individual can timely appeal to a court’s determination of paternity in accordance with Texas procedural law.^[51]

Here, there is no indication that the NH, a party to the prior proceedings, sought a timely appeal or otherwise properly sought judicial review of the determination of paternity already established under the 2005 Child Support Review Order and 2007 Final Decree of Divorce in accordance with Texas procedural law on appealing court judgments. As such, the NH is bound by the prior adjudications and is barred by the doctrine of collateral estoppel and res judicata from relitigating his biological paternity as to the Claimant in a subsequent suit (such as he has appeared to try to do in the 2014 Adjudication of Nonparentage).^[52] See Tex. Fam. Code Ann. § 160.637(a), (e); Dreyer, 871 S.W.2d at 697 (upholding the judgment that a finding in a divorce decree that the husband and the wife are the parents of certain children bars a later action by the children to establish that someone else is their biological father); In Interest of J.A.C., 2018 WL 2191604, at *3-4 (discussing collateral estoppel as a bar to prevent relitigation of particular issues already resolved in a prior suit and noting that per section 160.637(a)(2), (e), all parties to an adjudication are bound by the determination of parentage); In re R.J.P., 179 S.W.3d at 185-186 (per section 160.637(e) of the Texas Family Code, the adjudicated father could only challenge the adjudicated fact of biological paternity under the Texas rules of procedure for appeal and finding that this adjudicated father did not file any motions with the trial court after the adjudication, did not challenge the adjudication on appeal, and did not file a bill of review, and as such, this father was barred by collateral estoppel from relitigating his paternity in a subsequent suit). Here, instead of appealing the prior judgments, based on the evidence provided, the NH, a party to both proceedings, agreed, by his signature, to both orders and acted as the Claimant’s parent without challenge for 14 years until he sought the DNA testing in 2014. Thus, the NH failed to properly challenge both the binding 2005 Child Support Review Order and the binding 2007 Final Decree of Divorce.

Second, he could have sought to terminate his parent-child relationship, but the evidence indicates that he has not done this either. Texas law provides that a parent may file a suit for termination of his parent-child relationship under certain circumstances, including where a man was adjudicated to be the father of the child in a previous proceeding in which genetic testing did not occur if the man can show that: (1) he was not the child’s genetic father, and (2) he failed to contest parentage in the prior proceeding because of a mistaken belief at the times of the prior orders that he was the child’s genetic father based on misrepresentations. Tex. Fam. Code Ann. § 161.005(c).^[53] Thus, there can be a court order terminating the parent-child relationship established in a prior court determination of paternity.

Here, there is no indication in the 2014 Adjudication of Nonparentage that this court proceeding under Chapter 160 of the Texas Family Code involved a termination of the parent-child relationship in accordance with Chapter 161 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 161.001-161.211.^[54] Specifically, there is no indication that the NH filed a petition alleging facts showing he was not father or failed to contest the prior adjudications because of a misrepresentation. There is no indication that a pre-trial hearing was held to determine whether the NH had established a meritorious prima facie case for termination. Finally, there is no indication that the 2014 Adjudication of Nonparentage terminated the parent-child relationship as there is no language in the order at all about terminating the relationship. See id. §§ 161.005(h), 161.206(a) (if the court finds by clear and convincing evidence grounds for termination of the parent-child relationship, it shall render an order terminating the parent-child relationship). Instead, the later child support orders from 2015 and 2017 show the parent-child relationship was not terminated because the NH was ordered to pay continued support of the Claimant. In the September 2015 Agreed Child Support Order, one year after the 2014 Adjudication of Nonparentage, the court found specifically that the NH “still has a duty of support to [the Claimant].” Notably, the court also ordered that the NH should “receive possession credits for the [child support arrears] for the months of September XX, 2014, through December XX, 2014,” which indicates that the Claimant was living with the NH during this period.

But even more importantly for our analysis under section 216(h)(2)(A) of the Act, which is focused on the Claimant’s right to inherit from the NH under Texas law as his child, even if the NH had obtained a termination of the parent-child relationship, Texas law provides that the Claimant could still inherit from the NH, unless the court orders otherwise. See Tex. Fam. Code Ann. § 161.206(b) (an order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides”); see also LG Electronics, USA, Inc. v. Grigg, 424 S.W.3d 804, 809 (Tex. App. – Tyler 2014, no pet.) (noting that an order terminating the parent-child relationship divests the child of all legal rights with respect to the parent except the right to inherit from him); Tex. Estates Code Ann. § 201.052(e) (if a purported father’s parental rights have been terminated, the purported father may not inherit from the child). The 2014 Adjudication of Nonparentage makes no mention of the right to inherit.

d. Summary: The 2014 Adjudication of Nonparentage Does Not Bind the Agency

Thus, in weighing the fourth Gray factor, we believe that the 2014 Adjudication of Nonparentage is contrary to Texas law to the extent it purports to have an effect on the earlier adjudications of his parentage as already established in the 2005 Child Support Review Order and 2007 Final Decree of Divorce. Based on the evidence provided, the NH did not initiate a timely appeal of the 2005 Child Support Review Order or 2007 Final Decree of Divorce, nor has he provided evidence that he obtained an order terminating the parent-child relationship, and even if he did, the Claimant retains the right to inherit from the NH. Because the 2014 Adjudication of Nonparentage does not meet all four Gray factors, and most significantly, it is contrary to Texas law, it does not bind SSA.^[55]

3. SSA’s Deference to Nonbinding State Court Orders that are Consistent with Texas Law, the 2005 Child Support Review Order and the 2007 Final Decree of Divorce, is Warranted

Although all of the Texas court orders provided to SSA in this matter are nonbinding for the reasons discussed above applying Gray, we next consider whether we should nonetheless defer to any of them. See Hanson v. Astrue, 733 F. Supp. 2d 214, 218 (D. Mass. 2010) (“It would not be inconsistent with [SSR 83-37c] for the Commissioner to follow a state adjudication even though fewer than all the conditions were met, subject to the bounds of reason and good faith.”).

We recognize that the NH has provided evidence that he is not the Claimant’s biological father. The NH submitted the DNA testing upon which the court based its 2014 Adjudication of Nonparentage. The DNA testing here meets the state law requirements for genetic testing because it was conducted in a laboratory accredited by the American Association of Blood Banks (AABB); the results were in a record signed by a laboratory designee under penalty of perjury; and the documentation established a reliable chain of custody by including (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631; see also Tex. Estates Code Ann. §§ 204.001-.201 (genetic testing in proceedings to declare heirship; testing must comply with section 160.504 of the Texas Family Code). However, under section 216(h)(2)(A) of the Act, we must consider whether the child can inherit from the number holder under state intestate succession law, not whether the child has proven a biological relationship to the father.

We believe, given the totality of the above evidence, the agency should defer to the earlier court orders adjudicating the NH as the Claimant’s parent, which are consistent with Texas law. The evidence contains two final state court determinations of parentage (the 2005 Child Support Review Order and the 2007 Final Decree of Divorce). As explained above, final, unappealed adjudications of paternity are binding on all parties to the adjudication absent proper judicial review or termination of the parent-child relationship, and the NH is precluded by collateral estoppel and res judicata from relitigating his paternity even with DNA evidence indicating he is not the biological father. See Tex. Fam. Code §§ 160.637(a), (e) (adjudications of paternity binding on all parties and can only be challenged per Texas rules relating to appeals, vacating judgments, and other judicial review), 161.005 (adjudicated father may file a suit for termination of the parent-child relationship); In re J.A.C., 2018 WL 2191604, at *2 (binding effect of unchallenged adjudication of parentage in a divorce decree); In re D.V., 2017 WL 1018606, at *8 (Tex. App.—Texarkana Mar. 16, 2017, pet. denied) (binding effect of unchallenged adjudication of parentage in a suit affecting the parent-child relationship); In re T.S.S., 61 S.W.3d 481, 485 (Tex. App. – San Antonio, 2001, writ denied) (“Texas courts are not free to adopt a rule that an adjudicated father may be relieved of his support obligations anytime he comes forward with DNA evidence post-decree that tends to exclude him as the biological father.”).

Thus, even though the NH presented DNA evidence supporting a contrary conclusion, we cannot ignore these final state court orders adjudicating the NH to be the Claimant’s father, especially where section 216(h)(2)(A) of the Act directs us to determine whether the child could inherit under Texas laws of intestate distribution and Texas inheritance law does not require a biological link. See Wilson v. Estate of Williams, 99 S.W.3d 640, 649-50 (Tex. App.—Waco 2003, no pet.) (the Texas Estates Code does not require a biological link for paternal inheritance); see also Spiers v. Maples, 970 S.W.2d 166, 170-171 (Tex. App.—Fort Worth 1998, no pet.) (non-biological child that testator adopted by estoppel was entitled to paternal inheritance).

In summary, in weighing the conflicting evidence, we believe there is legal support for the agency to defer to the 2005 Child Support Review Order and 2007 Final Decree of Divorce adjudicating the NH’s paternity as to the Claimant, as these orders are consistent with state law, and the 2014 Adjudication of Nonparentage appears to be contrary to state law as an improper attack on these prior final judgments. Deferring to these earlier state court orders, we believe that a Texas court would find that the Claimant has established a right to inherit under Texas laws of intestacy from the NH as his child through unappealed, unchallenged final judgments adjudicating the NH as the Claimant’s father, satisfying methods (1) and (2) of section 201.052(a) of the Texas Estates Code for paternal inheritance. See Tex. Estates Code Ann. § 201.052(a)(1) (for purposes of inheritance, a child is the child of the child’s biological father if the child is born under the circumstances described by section 160.201 of the Texas Family Code, which includes an adjudication of paternity), (2) for purposes of inheritance, a child is the child of the child’s biological father if the child is adjudicated to be the child of the father by a court decree under Chapter 160 of the Texas Family Code).

CONCLUSION

We believe that a Texas court would find that the 2005 Child Support Review Order and the 2007 Final Decree of Divorce have a binding effect on the NH as the Claimant’s father. Although SSA is not bound by any of the state court orders in this case, we thus believe that the agency can reasonably defer to the 2005 Child Support Review Order and the 2007 Final Decree of Divorce adjudicating the NH as the Claimant’s father despite the DNA evidence and the 2014 Adjudication of Nonparentage to the contrary. The Claimant has a right to inherit from the NH, her adjudicated father, under Texas intestate succession law. Thus, we believe there is legal support for SSA to find that the Claimant has proven a parent-child relationship under section 216(h)(2)(A) for purposes of her application for child’s insurance benefits on the NH’s record.

 

For purposes of inheritance under Texas law, a child is his biological father’s child if he was born under circumstances described in section 160.201 of the Texas Family Code; he was adjudicated to be the father’s child by court decree as provided by chapter 160 of the Texas Family Code; the father adopted him; the father executed an acknowledgement or like statement of paternity as provided by subchapter D of chapter 160 of the Texas Family Code; or the child is not otherwise presumed to be the decedent’s child, but clear and convincing evidence establishes that the purported father was the biological father of the child.

In this case, considering the totality of the evidence, we find clear and convincing evidence that the NH is the claimant’s biological father.  As a result, the claimant could inherit from the NH under Texas intestate succession laws. Therefore, we find the claimant is the NH’s natural child under the Act for purposes of determining his entitlement to surviving child’s benefits on the NH’s record.   

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether the evidence submitted with the application for survivor child’s benefits on D~’s behalf is sufficient to establish a parent-child relationship with the deceased number holder B~ (NH).

ANSWER

Based on the information provided to the agency, we find that D~ could inherit from the NH under Texas intestate succession laws. Therefore, we find that the D~ is the NH’s natural child under the Act for purposes of determining his entitlement to surviving child’s benefits on the NH’s earning record.

 BACKGROUND

A Texas birth certificate shows that in October 2002, A~ gave birth to D~. No father is listed on D~’s birth certificate. It is our understanding that A~ was not married to the NH or to any other man at the time of D~’s birth, and that she has never married. SSA’s numident records show that A~ listed no father on D~’s first Application for a Social Security Card (SS-5 Form). On a second SS-5 Form, dated December 2002, A~ listed L~ (L~) as D~’s father.

On or about May X, 2013, the NH died in Texas. On May XX, 2014, A~ applied for Child’s Insurance Benefits -- Survivor Claim on D~’s behalf as the NH’s child. There is no allegation of marriage between the NH and A~, no court order of support, no court order of paternity, no written acknowledgment by the NH, and no genetic testing. The evidence presented in support of this application includes the following statements from family and friends, D~’s birth certificate, and three SS-5 Forms.

Statements from A~ (D~’s Mother):

Written Statements dated May 14, 2014:

The application summary related to D~’s May 14, 2014, application for child’s benefits contains A~’s written remarks in which she stated that D~ was the NH’s child. Although she was never married to the NH (and has not ever been married to any other man), A~ stated that she lived with the NH from July 2001 through 2006, when their relationship ended. She further stated that between December 2001 and October 2002, the month D~ was born, she did not have a sexual relationship with anyone other than the NH. A~ also acknowledged that the NH did not provide regular financial support to D~, but he gave D~ twenty dollars on his birthday in 2012.

Despite completing the December 2002, SS-5 Form that listed L~ as D~’s father, A~ claimed in her written remarks that she did not know why L~ was listed as D~’s father. However, she acknowledged that L~ is the father of her other child, D2~, born on February. A~ stated that she had not seen L~ since 1999.

Phone Interview on May 19, 2014:

In a telephone interview on May 19, 2014, A~ stated that she listed L~ as D~’s father on the December 1, 2002, SS-5 Form because she wanted to make the NH jealous because he had cheated on her. A~ stated that she and L~ had a previous sexual relationship, which resulted in D2~’s birth, and that she wanted the NH to think she was still involved with L~.

Statements from L~ (Listed as D~’s Father on the December 2002 SS-5 Form):

Phone Interview on June 9, 2014:

L~ stated he knew A~, but claimed that he had never heard of or knew anything about D~. He admitted that he was D2~’s father, A~’s other child, and he stated that he believed he was incarcerated in 2002 and released in 2003.

Written Statement received on June 18, 2014:

L~ stated that he is not D~’s father and that he was unaware that A~ may have claimed he was D~’s father in the past. L~ corrected his prior statement, clarifying that he was incarcerated from May 2000 through May 2001, and stated that he was not D~’s father because had not seen A~ or D2~ since he went to jail in May 2000. After he was released in May 2001, he found out that A~ and D2~ had moved and he had not seen them since. He does not know the identity of D~’s father.

Statements from L2~ (the NH’s Biological Brother):

Phone Interview on May 1, 2014:

L2~ stated that the NH told him several times that he was not sure if D~ was his child.

L2~ provided the information for the funeral program to the funeral home, which included a statement that D~ was the NH’s child. The program states, “B~ is survived by his two children, C~ and D~ ….” L2~ stated he included the statement that D~ was the NH’s child because D~ had been told that the NH was his father and L2~ did not want to hurt D~’s feelings.

Written Statement dated May 26, 2014:

Contrary to his May 1, 2014 phone interview, L2~ stated that before D~ was born, the NH told L2~ that he believed he was D~’s father. The NH did not ask L2~ to keep this information secret or private and did not tell L2~ that he was not D~’s father. L2~ stated that the NH always lived by himself and A~ always lived by herself. However, he stated that D~ visited the NH every weekend. L2~ witnessed some of the time that D~ and the NH spent together, and he stated the NH “loved being a father to his son.” When he was not present during their time together, L2~stated that the NH came back happy after each visit with D~.

Phone Interview on June 9, 2014:

The agency conducted a follow up interview with L2~ due to conflicts between the information he provided during the May 1, 2014, phone interview and his May 26, 2014, written statement. Although he confirmed his prior statement that the NH sometimes denied that D~ was his biological child, L2~ clarified that the NH only denied biological parentage when he was mad at D~’s mother, A~. L2~ stated that he should have elaborated more on this issue during the May 1, 2014, phone interview.

Consistent with his May 26, 2014, written statement, L2~ stated that D~ was the NH’s child, and that the NH always interacted with D~ as his child. The last interaction L2~ observed between the NH and D~ was at the child’s birthday party in October 2012, which L2~ also attended. He stated that although D~ did not have B~ family characteristics when he was younger, L2~ observed family characteristics in D~ as he got older.

Statement from A2~ (the NH’s Biological Brother):

Written Statement dated December 20, 2014:^[56] A2~ completed a Verification Form on December 20, 2014, stating that the NH told him “around 2006” that D~ was his child, that the NH and A~ lived together in approximately 2006-2007 on ~~ Street, and that the NH also told L2~ (the NH’s Biological Brother) and L3~ that D~ was his son. 

Statements from P~ (the NH’s Foster Mother):

Phone Interview on April 5, 2014: 

P~ raised the NH from when he was a small child to an adult. She knew of the NH’s other child, C~, but did not know about D~ until the NH’s funeral where a woman introduced D~ to her as her grandchild. She did not get the woman’s name or address or the child’s name.

Phone Interview on July 29, 2014:

P~ stated that because the NH had never mentioned a child named D~ to her, she was surprised and skeptical about the child. During the phone conversation, P~ wanted to check with her son, S~, who was like a brother to the NH to ask him if he was aware that D~ was the NH’s child. She conferenced S~ into a three-way phone conversation, and he confirmed that D~ was the NH’s child.

Statements from T~ (D~’s Godmother):

Written Statement dated May 19, 2014: 

T~ is D~’s godmother. She stated that when D~ was approximately three months old, the NH told her that he believed that he was D~’s father. The NH did not ask T~ to keep this information secret or private and never denied that he was D~’s father. 

Without referencing specific dates or addresses, T~ stated that “they,” D~, and the NH, lived together in the same apartment complex where she lived. After they moved out of the apartment complex, they continued living together. After the NH and A~ ended their relationship, the NH moved back into the same apartment complex to live with friends. 

Apparently referring to after the NH’s and A~’s relationship ended, T~ did not know whether D~ ever lived with the NH as his child, but she knew that D~ would stay with the NH on weekends in the summertime when he lived in the apartment complex with his friends after his relationship with A~ ended in 2006. She occasionally babysat D~ for the NH and thought the NH acted like a father to D~ when he had the child for weekends and when he brought D~ with him to get his haircut by T~’s boyfriend. 

Written Statement dated September 17, 2014: 

T~ stated that the NH and A~ lived together from 2001 through 2002 at ~~~~~~ and lived together from 2003 through 2006 at ~~ Street in Houston, Texas. 

Statements from M~ (the NH’s Best Friend):

Written Statement dated May 20, 2014: 

M~ stated that he was the NH’s best friend. “A long time ago,” the NH seemed pleased when he told M~ that he believed that he was D~’s father. The NH also told his other neighborhood friends that he was D~’s father. The NH did not ask M~ to keep this private or secret and never denied that he was D~’s father. 

Without referencing specific dates or addresses, M~ stated that the NH lived with A~, but that at the time of the NH’s death, he lived with another woman and that A~ lived by herself. D~ lived with his mother, but he spent some weekends with his father, the NH. On one occasion, the NH and D~ stayed with M~ in his apartment for a week. 

Written Statement dated August 30, 2014: 

M~ stated that the NH and A~ lived together from 2001 through 2006. They lived at ~~ ~~ ~~ and then on the north side. 

Other Evidence:

D~’s Texas birth certificate shows he was born on October, lists A~ as his mother, and does not list a father. A~’s address on the birth certificate appears to be ~~~~ of [illegible] ~~ ~~, Houston, Texas. 

In the SS-5 Form A~ submitted for D~ on December 1, 2002, A~ listed her address as ~~~~~~ Drive, Houston, Texas 77060, and listed L~ as D~’s father. 

In a SS-5 Form that the NH submitted on February 6, 2003, he listed his address as ~~~~ ~~ ~~, Houston, Texas 77071.

In a SS-5 Form that A~ submitted on May 11, 2003, A~ listed her mailing address as ~~ ~~ ~~ Drive, Houston, Texas 77060.

ANALYSIS

Federal Law: Entitlement to Surviving Child’s Benefits Under the Act

Under the Social Security Act (Act), a child may be eligible for surviving child’s benefits if he is the child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a). To be entitled to survivor’s benefits on an insured number holder’s account, a child must: 

1. 1. 

   be the number holder’s child;

2. 2. 

   be dependent on the number holder;

3. 3. 

   apply for benefits;

4. 4. 

   be unmarried; and

5. 5. 

   be under specified age limits (18 or 19) or be under a disability which began prior to age 22. 

See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). Under the Act and regulations, the term “child” includes a natural child.^[57] See 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. Here, it is undisputed that D’~ is unmarried, under the age of 18, and that A~ applied for benefits on his behalf.  The agency will consider D’~ to be dependent on the NH if he is the NH’s natural child. See 20 C.F.R. § 404.361(a).  Thus, the remaining issue is whether D’~ is the NH’s natural child.

For purposes of surviving child’s benefits, a claimant proves that he is a number holder’s natural child if:

1. 1. 

   he could inherit property through intestate succession as the number holder’s natural child;

2. 2. 

   he is the number holder’s natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment;

3. 3. 

   he is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or

4. 4. 

   the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to his support when the number holder died.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Based on the information we received, D~ does not qualify as the NH’s natural child under tests two, three, or four.^[58] See 20 C.F.R. § 404.355(a)(2)-(4). Thus, to prove that he is eligible for child’s insurance benefits on the NH’s account, D~ must show under test one that he could inherit property from the NH through intestate succession.

To determine whether an applicant could inherit a deceased number holder’s property through intestate succession, the agency must apply the intestacy laws of the state in which the deceased number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Since the NH’s permanent home was in Texas when he died, D~’s eligibility for survivor’s benefits on the NH’s account depends upon whether he could inherit property under Texas intestacy laws as the NH’s child. See id. 

State Law Requirements for Inheritance as a Child under Texas’s Intestate Succession Laws, Section 201.052 of the Texas Estates Code

Under Texas law, an individual can establish a father-child relationship for purposes of intestate inheritance under section 201.052 of the Texas Estates Code. See Tex. Estates Code Ann. § 201.052(a), (d).^[59] For purposes of inheritance, a child is his biological father’s child if: 

1. 1. 

   he was born under circumstances section 160.201 of the Texas Family Code describes;

2. 2. 

   he was adjudicated to be the father’s child by court decree as provided by chapter 160 of the Texas Family Code;

3. 3. 

   the father adopted him;

4. 4. 

   the father executed an acknowledgement or like statement of paternity as provided by subchapter D of chapter 160 of the Texas Family Code; or

5. 5. 

   the child is not otherwise presumed to be the decedent’s child, but clear and convincing evidence establishes that the purported father was the biological father of the child. 

See Tex. Estates Code Ann. § 201.052(a), (d). 

The second, third, and fourth tests set forth in the Texas Estates Code are not applicable in this case.^[60] However, the evidence submitted with the legal opinion request contains evidence supporting D~’s ability to inherit from the NH as the NH’s biological child under tests one and five.  Therefore, we first examine whether D~ can inherit under section 160.201 of the Texas Family Code and then examine whether clear and convincing evidence establishes that the NH was D~’s biological father. 

Test One: The Circumstances Described in Section 160.201 of the Texas Family Code to Establish a Father-Child Relationship, In Particular, the Presumption of Paternity

Under Section 160.201 of the Texas Family Code, a father-child relationship exists if: (1) there is an unrebutted presumption of the man’s paternity of the child under Section 160.204 of the Texas Family Code; (2) the man acknowledges his paternity; (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code Ann. § 160.201(b)(1)-(5).

The second, third, fourth, and fifth tests set forth in Section 160.201 of the Texas Family Code are not applicable in this case.^[61] However, as noted below, the evidence submitted with the legal opinion request suggests that, under the first test, there may be an unrebutted presumption of the man’s paternity of the child under section 160.204 of the Texas Family Code. 

Section 160.204 of the Texas Family Code provides:

1. a. 

   A man is presumed to be the father of a child if:

   1. 1. 

      he is married to the mother of the child and the child is born during the marriage;

   2. 2. 

      he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

   3. 3. 

      he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

   4. 4. 

      he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

      1. A. 

         the assertion is in a record filed with the bureau of vital statistics;

      2. B. 

         he is voluntarily named as the child's father on the child's birth certificate; or

      3. C. 

         he promised in a record to support the child as his own; or

   5. 5. 

      during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

Tex. Fam. Code Ann. § 160.204(a). 

Because the first four tests in Section 160.204 of the Texas Family Code require marriage between the man and the child’s mother and because there is no evidence of a marriage between the NH and A~, the NH is not D~’s presumed father. See Tex. Fam. Code Ann. § 160.204(a)(1)-(4). We therefore examine the fifth test for a presumption of paternity (the holding out presumption) because there is evidence, albeit conflicting, that the NH resided with D~ and held out to others that he was D~’s father. See Tex. Fam. Code Ann. § 160.204(a)(5).

To establish a presumption of paternity under Texas Family Code § 160.204(a)(5), a court must find by the preponderance of the evidence that during the first two years of D~’s life, the NH continuously resided in the same household as D~ and that the NH represented to others that D~ was his child. See Tex. Fam. Code Ann. §§ 105.005, 160.204(a)(5); see also Mena v. United States, 2012 WL 6047039, at *5 (W.D. Tex. Dec. 5, 2012) (holding that to raise a presumption of paternity under Texas Family Code § 160.204(a)(5), the holding out presumption, a court must find that it is applicable to the facts of the case by a preponderance of the evidence).  The preponderance of the evidence standard requires a court to look at “all circumstances raised by the evidence” and determine whether the alleged fact “is more reasonably probable than not.”  See Valles v. State, 646 S.W.2d 636, 638 (Tex. App.—Houston [1st Dist.] 1983, no writ); see also Mena, 2012 WL 6047039, at *5. 

Because it is determinative, we first address whether D~ established by the preponderance of the evidence that during the first two years of D~’s life, the NH continuously resided in the same household as D~. See Tex. Fam. Code Ann. §§ 105.005, 160.204(a)(5). The evidence submitted contains conflicting evidence related to this finding. 

Evidence supporting a finding that the NH continuously resided in the same household as D~ during the first two years of his life includes A~’s, T~’s, and M~’s statements that the NH and A~ lived together from 2001 through 2006 when their relationship ended. Additionally, T~’s statement carries additional weight for the period from D~’s birth until early 2003 because she was the NH and A~’s neighbor in the same apartment complex during that time. 

Evidence supporting a finding that the NH did not continually reside with D~ during the first two years of his life includes the NH’s SS-5 Form that indicated the NH’s address in early 2003 was ~~~~ ~~ ~~; A~’s SS-5 Form and D~’ birth certificate indicating that A~’s address in late 2002 was ~~~~~~ Drive; L2~’s statements that A~ and the NH never lived together although D~ visited the NH every weekend and that the NH returned “happy” from each visit with D~; and M~’s statement that D~ lived with his mother but spent some weekends with the NH. In addition, we consider A~’s potential for financial gain from an award of benefits. 

When considering all circumstances the evidence raises, we opine that is more reasonably probable than not that the NH did not reside in the same household as D~ during the first two years of his life. See Valles, 646 S.W.2d at 638. Because we conclude that the NH did not continuously reside in the household where D~ resided during the first two years of his life, he cannot inherit as the NH’s presumed child under section 160.201 of the Texas Family Code. See Tex. Estates Code Ann. § 201.052(a); Tex. Fam. Code Ann. §§ 160.201, 160.204(a). Accordingly, we next address whether there is clear and convincing evidence that the NH is D~’s biological father under section 201.052(d) of the Texas Estates Code. 

Test Five: Clear and Convincing Evidence of Paternity Under Texas Law

A person claiming to be a decedent’s biological child may petition the probate court for a determination of right of inheritance from a decedent. See Tex. Estates Code Ann. § 201.052(c).^[62] If the probate court finds by clear and convincing evidence that the purported father was the biological child’s father, the child is treated as any other child of the decedent for purposes of inheritance. See Tex. Estates Code Ann. § 201.052(d). Thus, we look to whether clear and convincing evidence establishes that the NH was D~’s father.

To establish a fact by clear and convincing evidence, the evidence must “produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; Villery v. Solomon, 16 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (“The clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved.”). 

In cases involving proof of paternity, the fact finder must decide in each case whether the evidence presented is clear and convincing. Garza v. Maverick Mkt., Inc., 768 S.W.2d 273, 275-76 (Tex. 1989) (holding that in a wrongful death action an alleged child must have the opportunity to prove by clear and convincing evidence that he is the deceased’s child).  The Texas Supreme Court listed some of the potential evidence an alleged child may use to prove paternity, including:

1. 1. 

   Blood or genetic tests;

2. 2. 

   Evidence of physical resemblance of the child to the alleged father;

3. 3. 

   Prior statements by the alleged father that he was the father of the child, or other admissions by him bearing on his relationship to the child; and

4. 4. 

   Evidence of periods of conception and gestation.

Id. at 276; see also In Interest of B.M., 570 S.W.2d 493, 501 (Tex. Civ. App.—Texarkana 1978, no writ). However, the Texas Supreme Court concluded that it could not predict whether some or all of this evidence would rise to the level of clear and convincing evidence in any particular case. Id.  Texas law does not require blood or other genetic evidence to establish by clear and convincing evidence that an alleged father is a child’s father. See Tex. Estates Code Ann. § 201.052(d); Garza, 768 S.W.2d at 276.^[63] In paternity cases that do not involved genetic testing, credibility is a determining factor. See, e.g., Villery, 16 S.W.3d 106 (crediting the testimony of some family members over others); Gurka v. Gurka, 402 S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (finding paternity by crediting the testimony of the alleged father over the mother); see also Slaton v. Slaton, 987 S.W.2d 180, 183 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (finding in the context of Texas property law that a self-serving statement did not amount to clear and convincing evidence). 

In Villery, the appellate court affirmed the probate court’s finding that clear and convincing evidence showed that the child was the decedent’s daughter and heir, even in the absence of any genetic evidence. Villery, 16 S.W.3d at 107-110. The majority of the evidence supporting the court’s decision consisted of statements from relatives and friends, including the child, the child’s mother, the child’s brother, the decedent’s aunt, and two of the decedent’s sisters. Id. They testified that the decedent acknowledged the child as his daughter, he visited her, he provided financial support, and the funeral program identified the child as the decedent’s daughter. Id.  Although the court considered contrary evidence, including testimony that the decedent expressed doubts about whether he was the child’s father, the court ultimately determined that the statements that the child was the decedent’s daughter were credible and, thus, found that clear and convincing evidence supported the finding that the child was the decedent’s daughter and heir. Id. 

In Gurka, the probate court had to determine the biological father of a deceased child because the alleged father filed a wrongful death action. Gurka, 402 S.W.3d 341. In this case, the probate court weighed conflicting evidence, including prior inconsistent sworn statements from the alleged father regarding whether he was the child’s father, and determined that clear and convincing evidence supported the finding that alleged father was the biological father of the deceased child. Id. Although the child’s mother alleged another individual was the child’s father, the probate court disregarded the allegation because there was minimal evidence supporting the allegation. Id. at 345-46. Among other facts, the probate court found persuasive the testimony that the child’s physical characteristics were similar to the alleged father’s and the testimony that the alleged father acted like the child’s biological father. Id. at 346. The probate court did not have any blood or genetic evidence to consider. Id. The appellate court affirmed the probate court’s decision because despite any conflicting evidence and a lack of genetic evidence, the probate court could have reasonably formed a firm belief or conviction that the alleged father was the child’s biological father. Id. at 349. 

In the present matter, consistent with Villery and Gurka, the evidence submitted with the legal opinion request provides enough evidence for us to form a firm belief or conviction that the NH was D~’s biological father. See Tex. Fam. Code Ann. § 101.007 (defining clear and convincing evidence as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established”). Multiple sources, including A~, T~, L2~, A2~, S~, and M~ stated that the NH considered himself D~’s father. Although L~ initially stated that the NH told him several times that he was not sure if D~ was his child, he later clarified that the NH only denied biological parentage when he was mad at D~’s mother and stated that the NH told him that he believed he was D~’s father. Although the NH did not tell P~ (the NH’s foster mother) about D~, he also never denied his paternity to P~. The evidence regarding the NH’s prior statements to his friends and family that he was D~’s father outweighs any contrary evidence, including L~’s initial statements, which L~ later admitted he should have clarified, and P~’s skepticism, which S~ addressed. Thus, the totality of the evidence supports the conclusion that the NH was D~’s father. See Garza, 768 S.W.2d at 276 (providing that evidence an alleged child may use to prove paternity includes an alleged father’s statements that he was the child’s father). 

The only direct evidence that the NH is not D~’s father comes from the December 1, 2002 SS-5 Form, on which A~ listed L~ as D~’s father. A~ stated that she listed L~ as D~’s father to make the NH jealous, but she later clarified, and continues to maintain, that the NH, not L~, is D~’s father. Consistent with the clarification, A~ stated that during the gestational period^[64] of December 2001 through October 2002, she did not have a sexual relationship with anyone other than the NH. Also, L~ asserted that he was not D~’s father because he had not seen A~ since May 2000. Thus, considering periods of gestation and conception, L~ could not be D~’s father. See Garza, 768 S.W.2d at 276 (providing that evidence an alleged child may use to prove paternity includes evidence of periods of gestation and conception). Because L~’s statements in this regard corroborates A~’s assertion that L~ is not the father, we credit these statements over the December 2002 SS-5 Form listing L~ as D~’s father. See, e.g., Gurka, 402 S.W.3d at 345-46 (where the probate court held that clear and convincing evidence supported the alleged father’s paternity despite the mother’s claim that another man was the child’s father). 

Other evidence supporting a finding that the NH is D~’s father include L2~’s statement that he observed B~ family characteristics in D~ as he got older; L2~’s inclusion of D~ in the funeral program as the NH’s child; and L2~’s, T~’s, and M~’s statements that D~ visited the NH on the weekends, acted like his father, and attended his birthday party. See Garza, 768 S.W.2d at 276 (providing that evidence an alleged child may use to prove paternity includes evidence of physical resemble ~ of the child to the alleged father); Gurka, 402 S.W.3d at 346 (providing that the court found persuasive the testimony that the child’s physical characteristics were similar to the alleged father’s and that the alleged father acted like the father); Villery, 16 S.W.3d at 108 (citing the child’s inclusion in the memorial service program as the deceased’s child and visits to see the child as evidence of paternity). 

Considering the totality of the evidence, we find clear and convincing evidence that the NH is D~’s father. See Tex. Fam. Code Ann. § 101.007; see also Villery, 16 S.W.3d at 107. As a result, D~ could inherit from the NH under Texas intestate succession laws. See Tex. Estates Code Ann. § 201.052(d).

CONCLUSION

Based on the information provided to the agency, we find that D~ could inherit from the NH under Texas intestate succession laws. Therefore, we find that the D~ is the NH’s natural child under the Act for purposes of determining his entitlement to surviving child’s benefits on the NH’s earning record.

Michael McGaughran

Regional Chief Counsel

By:____________

M~ J. Carey

Assistant Regional Counsel

For purposes of inheritance in Texas, paternity may be established if clear and convincing evidence establishes that the purported father was the biological father of the child. In this case, the DNA kinship test report did not demonstrate by clear and convincing evidence that the number holder was or was not the child's biological father. The report only established a familial relationship between the number holder's brother and the child. It did not exclude or identify the number holder as the child's father. However, the totality of the evidence submitted by the child's mother in this case constitutes clear and convincing evidence under Texas law that the number holder is the child’s biological father. The child is entitled to child’s insurance benefits on the number holder’s account as the number holder’s child.

QUESTION PRESENTED

This memorandum is in response to your request for an opinion on whether K~, a minor child, may be entitled to Social Security child’s insurance benefits on the earnings record (account) of M~, the deceased number holder (number holder).  Specifically, you have asked whether a Y-Chromosome deoxyribonucleic acid kinship report (DNA kinship test report), based on samples from the deceased number holder’s brother and K~, in combination with other documentation, establish that K~ is the number holder’s biological child under Texas law.

ANSWER

In our opinion, the totality of the evidence constitutes clear and convincing evidence under the Texas Probate Code that the number holder is K~'s biological father. Consequently, K~ is entitled to child’s insurance benefits on the number holder’s account. 

 BACKGROUND

On June 11, 2008, the request for legal opinion mistakenly states that K~’s date of birth is July. The birth certificate shows that K~'s date of birth is June.

A~ gave birth to K~. As per information on an agency’s “remarks screen,” A~ advised the agency that she and the number holder were never married; that they lived together for about six months during A~’s pregnancy with K~, but they were not living together when K~ was born; that the number holder did not contribute to K~’s support; and that she began proceedings with the Texas Attorney General, Child Support Division, to have court-ordered child support, but the state could not find the number holder to establish the child support order. As per an e-mail dated October 30, 2013, from J~, a claims representative, to the Dallas Regional Office, A~ has never been married.   

The number holder died on December XX, 2012. At the time of the number holder’s death, he was domiciled in Texas and was married to M2~ 

In August 2013, A~ filed a child’s insurance benefits claim on K~’s behalf, alleging that the number holder is K~’s biological father. To establish the parent-child relationship between K~ and the number holder, A~ submitted the following evidence:

1. 1. 

   A DNA kinship test report based on samples from M3~, the number holder’s brother, and K~, dated July 25, 2013, finding a 99.99% probability that M3~ is K~’s paternal uncle. 

2. 2. 

   A~’s statement stating that she had seen M3~ twice in her life, was never romantically involved with him, and had never had a sexual relationship with M~ or with anyone else in the number holder’s family.

3. 3. 

   A form from the Attorney General of Texas, Child Support Division, titled “Verification of Child Support Income,” signed November 23, 2009, where A~ named the number holder as the payor.

4. 4. 

   A form from the Texas Health and Human Services Commission (HHSC)^[65] titled “Parent Profile Questionnaire,” signed in October 2009, where A~ named the number holder as K~’s absent parent.

5. 5. 

   Two undated letters purportedly from the number holder that include content indicating that A~ and the number holder had a sexual relationship.

6. 6. 

   A picture of the number holder holding K~ at the hospital, when K~ was born.

7. 7. 

   A Statement of Claimant or Other Person, Form SSA-795, dated August 6, 2013, where A~’s mother ^[66] stated that in October 2007, A~ and the number holder went to her house and informed her about the pregnancy; that the number holder confirmed that he was the unborn child’s (K~’s) father; that the number holder was present during K~’s delivery; that the number holder cut K~'s umbilical cord; that the number holder’s mother was also present during K~’s delivery; and that the number holder’s mother and sister visited A~ at the hospital when K~ was born. 

8. 8. 

   A Statement of Claimant or Other Person, Form SSA-795, dated August 5, 2013, where L~ and B~, the number holder’s parents, acknowledged that K~ is the number holder’s son.

9. 9. 

   A Statement of Claimant or Other Person, Form SSA-795, dated August 5, 2013, where the number holder’s parents stated that M~ was the number holder’s only brother; that the number holder resided and died in Texas; that before the number holder died, he admitted to them that he was K~’s father; that they were present at K~’s baby shower; and that K~ was their grandson.

10. 10. 

    A Child Relationship Statement, Form SSA-2519, dated August 5, 2013, where A~ stated that she had commenced proceedings ^[67] to have court ordered child support for K~, but the courts could not locate the number holder to establish the child support order; and that the number holder told M~ that he was K~’s father.  

11. 11. 

    K~’s birth certificate, showing his date of birth as June, naming A~ as his mother, but it does not name anyone as his father.

12. 12. 

    M~s birth certificate, showing his date of birth August, naming B~ and L~ as his parents.

13. 13. 

    The number holder’s certificate of death, showing that he died in Austin, Texas on December XX, 2012.

ANALYSIS

1. A. 

   The Agency Applies State Intestacy Laws to Determine Status as a Child

   Under the Social Security Act, a child may be eligible for surviving child’s benefits if he is the child of an individual who has died fully or currently insured. 42 U.S.C. § 402(d)(1). To be entitled to survivor’s benefits on an insured number holder’s account, a child must:  (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5).  Here, it is undisputed that K~ is unmarried and under the age of 18, and that his mother applied for surviving child’s benefits on his behalf. The agency will consider a child dependent upon a number holder if the child is the number holder’s child. See 20 C.F.R. § 404.361(a). Thus, we next determine whether K~ is the number holder’s child. The agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” POMS GN 00306.001(D).

   For purposes of surviving child’s benefits, a claimant is a number holder’s child if:  (1) he could inherit property through intestate succession as the number holder’s child; (2) he is the number holder’s child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he is the number holder’s child, and before the number holder’s death, the number holder acknowledged him as his child in writing; a court decreed the number holder to be the claimant’s parent; or a court ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder is the claimant’s parent and was either living with the claimant or contributing to his support at the time the number holder died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3)(A),(C); 20 C.F.R. § 404.355(a)(1)-(4). Based on the information we received, A~ and the number holder never married or participated in a ceremony that would have resulted in a valid marriage. No court decreed the number holder to be K~’s parent or ordered the number holder to contribute to K~’s support before the number holder’s death. Further, the number holder never lived with K~, contributed to his support, or acknowledged him in writing as his child. The record includes two letters that purportedly the number holder sent to A~. One of the letters is not dated, does not mention either a child or a pregnancy, and a person named M2~ sent the letter. The second letter states in part, “It’s also more than likely I’m responsible for your pregnancy,” and this letter does not identify K~ as the child, is not dated, is not signed, and does not identify the person writing the letter. The agency cannot consider these letters as proof of an acknowledgment of paternity because the agency cannot authenticate that the number holder wrote the letters. Moreover, the letters are not acknowledgment of paternity under Texas law. See footnote 10; Tex. Fam. Code Ann. §160.302.

   Therefore, K~ does not qualify as the number holder’s child under tests two, three, or four. To prove that he is eligible for child’s insurance benefits on the number holder’s account, K~ must therefore show under test one that he could inherit property from the number holder through intestate succession. 

   To determine whether an applicant could inherit a deceased number holder’s property through intestate succession, the agency must apply the intestacy laws of the state in which the deceased number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Since the number holder’s permanent home was in Texas when he died, K~’s eligibility for child’s insurance benefits on the number holder’s account depends upon whether he could inherit property under Texas intestacy laws as the number holder’s child. See id. 

2. B. 

   Analysis Under Section 42(b) of the Texas Probate Code

   The Texas intestacy laws are codified in the Texas Probate Code, which provide, in pertinent part, the framework for determining father-child relationships for inheritance purposes. See Tex. Prob. Code § 42(b).  The Texas Legislature has repealed the Texas Probate Code and has enacted the Texas Estates Code, which will become effective January 1, 2014. See Acts 2009, 81st Leg., ch. 680; Acts 2011, 82nd Leg., ch. 823 (H.B. 2759); and Acts 2011, 82nd Leg., ch. 1338 (S.B. 1198). The new provisions concerning maternal and paternal inheritance found in section 42 of the Texas Probate Code will be in sections 201.051 and 201.052 of the Texas Estates Code.

    For purposes of inheritance, a child is his biological A Texas court held that proof of a biological link to the father is not required for a child to be considered a “child of his biological father” under section 42(b), noting that a biological father includes a man who has adopted a child. See Wilson v. Estate of Williams, 99 S.W.3d 640, 650 (Tex App. –Waco 2003). 

   father’s child if: (1) he was born under circumstances section 160.201 Under section 160.201 of the Texas Family Code, a father-child relationship exists if:  (1) an unrebutted presumption of paternity arises in a marriage; (2) the man acknowledges his paternity (see footnote 10 for requirements of acknowledgment of paternity); (3) a court adjudicates the man’s paternity; (4) the man adopts the child; or (5) the man consents to assisted reproduction and his wife gives birth. See Tex. Fam. Code Ann. § 160.201(b)(1)-(5). K~ does not meet any of the methods described in section 160.201 of the Texas Family Code because he was not born under any of those circumstances. See id.

   of the Texas Family Code describes; (2) he was adjudicated to be the father’s child by court decree as provided by chapter 160 of the Texas Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by subchapter D of chapter 160 of the Texas Family Code; Under Texas law, “[a]n acknowledgment of paternity must: (1) must be in a record; (2) be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity; (3) state that the child whose paternity is being acknowledged: (A) does not have a presumed father or has a presumed father whose full name is stated; and (B) does not have another acknowledged or adjudicated father; (4) state whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing; and (5) state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances.”  Tex. Fam. Code Ann. § 160.302.

   or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The first four methods set forth in the Texas Probate Code are not applicable in this case, as the number holder was not born under any of the circumstances section 160.201 of the Texas Family Code describes; there is no court decree adjudicating that the number holder is K~’s father; the number holder never adopted K~; and the number holder never executed an acknowledgment of paternity.  With respect to the court order of adjudication, we note that the Social Security regulations provide that if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency decides a child’s “paternity by using the standard of proof that the state court would use as a basis for a determination of paternity.” Id. Texas applies the clear and convincing evidence standard of proof to determine paternity after the father’s death. See In re Interest A.S.L., 923 S.W.2d 814, 818 (Tex.App. –Amarillo 1996, no writ).  Thus, our analysis under the second method would be the same as under the fifth method and would concern whether clear and convincing evidence establishes the child relationship. See also POMS GN 00306.075.B.4.

   Thus, for K~ to establish that he had a right to paternal inheritance from the number holder, he must establish it under the fifth method of section 42(b) of the Texas Probate Code by presenting clear and convincing evidence that he is the number holder’s biological child. See footnote 8. 

    See Tex. Prob. Code § 42(b). 

   Under Texas law, “the clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved.” Villery v. Solomon, 16 S.W.3d 106, 107 (Tex.App. –Houston, 2000 [1st Dist.], no pet.), quoting In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980); see also Tex. Fam. Code Ann. § 101.007. Thus, we must determine whether the totality of the evidence Ashley submitted to the agency constitutes clear and convincing evidence to establish that K~ is the number holder’s biological child.

   We first consider the genetic testing evidence that A~ provided to the agency to support the parent-child relationship between K~ and the number holder. Under Texas law, a man is rebuttably identified as the father of a child if the genetic testing complies with statutory requirements, In order to establish a genetic testing report’s reliability and authenticity, first the genetic testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body the Secretary of the United States Department of Health and Human Services designates. See Tex. Fam. Code Ann. § 160.503(a). Second, a laboratory designee must sign the DNA kinship test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a). Third, testimony or documentation must establish a reliable chain of custody by providing the following:  (1) the names and photographs of the persons whose specimens have been taken; (2) the names of the persons who collected the specimens; (3) the places and dates the specimens were collected; (4) the names of the persons who received the specimens in the testing laboratory; and (5) the dates the specimens were received. See Tex. Fam. Code Ann. § 160.504(b). 

   and the results disclose that the man has at least a 99% probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code §§ 160.503(a); 160.504(a),(b); 160.505(a); 160.621(a). Here, the number holder’s specimen was not available for genetic testing because the number holder was deceased.  Instead, as part of the evidence to establish paternity posthumously, A~ submitted a DNA kinship test report dated July 25, 2013, based on specimen from M~ and K~. “One may choose to do DNA Y chromosome testing for paternity if the alleged father is unable to do the Y chromosome DNA testing himself (like if, for example, he is missing or dead). However, if the alleged uncle does the DNA Y chromosome testing for paternity of his brother, there will be no way for the child to know whether the uncle is his father or his    brother. . . .  DNA Y chromosome testing for paternity will just show that there is a familial connection between whoever gives a DNA sample, nothing more.” Ancestry DNA testing website (last searched on November 1. 2013).

    Under Texas law, when the man has died and cannot provide a specimen for genetic testing, in looking at whether clear and convincing evidence exists to establish paternity, as one piece of evidence, the court may consider the results of genetic testing of the man’s brother. See Tex. Fam. Code §160.508(a)(2); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 580 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). 

   The DNA kinship test report showed a 99% probability that M~ is K~’s paternal uncle, which satisfies the probability provision of the Texas Family Code. See Tex. Fam. Code § 160.505(a).  The DNA kinship report does not meet the Texas statutory requirements for genetic testing to establish paternity between K~ and the number holder because the DNA kinship test report did not exclude or identify the number holder as K~’s father. See Tex. Fam. Code Ann. §§ 160.102(8); 160.505(a)(1) (the man has at least a 99% probability of paternity).  Instead, the DNA kinship test report only established a familial relationship between M~ and K~.    

   Although the DNA kinship test report did not demonstrate by clear and convincing evidence that the number holder was or was not K~’s biological father, A~ submitted other evidence to support the parent-child relationship between K~ and the number holder. A~ submitted two undated letters purportedly from the number holder that include content indicating that A~ and the number holder had a sexual relationship. A~ also submitted a picture that is purportedly the number holder holding K~ at the hospital when K~ was born.  Although the record indicates that the number holder was at the hospital during K~’s birth, it does not include any evidence explaining why K~’s birth certificate does not name the number holder as his father. See Tex. Health & Safety Code Ann. § 192.012(a) (if the mother of a child is not married to the father of the child, a person responsible for filing the birth certificate shall provide an opportunity for the child’s mother and putative father to sign an acknowledgment of paternity).

    Additionally, A~ stated that she had requested services from the Texas Attorney General, Child Support Division, to establish a child support order for K~, but the courts could not locate the number holder to establish the child support order. We note that the Attorney General of Texas, Child Support Division, may have initiated the child support services with A~ because K~’s birth certificate does not name an individual as a father. See Tex. Health & Safety Code Ann. § 192.005(d) (“If the items relating to the child’s father are not completed on a birth certificate filed with the state registrar, the state registrar shall notify the attorney general”).

    In support of her statement, A~ submitted a form from the Attorney General of Texas, Child Support Division, titled “Verification of Child Support Income,” signed on November 23, 2009, where A~ named the number holder as the payor; and a form from the HHSC, See footnote 2.

   titled “Parent Profile Questionnaire,” signed in October 2009, where A~ named the number holder as K~'s absent parent. A~ further submitted a personal statement stating that she had seen M~ twice in her life, but that she had never had a sexual relationship with M~ or anyone else in the number holder’s family. The number holder’s letters, the forms requesting public assistance, the number holder’s picture at the hospital holding K~, and A~’s statements constitute evidence supporting the parent-child relationship between K~ and the number holder.

   A~ also submitted statements from family members to show that the number holder had acknowledged to family members that he was K~’s father. A~ submitted a Statement of Claimant or Other Person, Form SSA-795, dated August 6, 2013, where A~’s mother See footnote 3. 

   stated that in October 2007, prior to K~’s birth, A~ and the number holder went to her house and informed her about the pregnancy; that when they went to her house, the number holder confirmed that he was the father of the unborn child; that the number holder was present during K~’s birth; that the number holder cut K~’s umbilical cord; that the number holder’s mother was also present during K~’s birth; and that the number holder’s mother and sister visited A~ at the hospital when K~ was born. A~ also submitted a Statement of Claimant or Other Person, Form SSA-795, dated August 5, 2013, where B~ and L~, the number holder’s parents, stated that before the number holder died, he admitted to them that he was K~’s father; that they were present at K~’s baby shower; that K~ was their grandson; that M~ was the number holder’s only brother; and that the number holder resided and died in Texas. The family’s statements further support the parent-child relationship between K~and the number holder.

   CONCLUSION

   Based on the information provided to the agency, we have determined that, while DNA kinship test report does not establish that the number holder is K~s father, the totality of the evidence constitutes clear and convincing evidence under Texas law that the number holder is K~’s biological father. Therefore, K~ is entitled to child’s insurance benefits on the number holder’s account as the number holder’s child. Our office is in the process of proposing changes to Program Operations Manual System (POMS) General (GN) 00306.640 related to the issue of retroactivity under the Texas Intestacy Laws; however, under present POMS provisions, we are unable to issue an opinion establishing a retroactive effective date of a parent-child relationship.

   Michael McGaughran
   
   Regional Chief Counsel

      

   By:     /s/ Ruben Montemayor
   
   Ruben Montemayor
   
   Assistant Regional Counsel

The evidence is insufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, Ms. T~ cannot establish that the number holder is A~’s father, and the agency should not consider A~ to be the number holder’s child for Social Security purposes.

This memorandum is in response to your request for a legal opinion on whether, under Texas law, a deoxyribonucleic acid (DNA) Y Chromosome Report based on samples from a deceased number holder’s brother and a child is sufficient evidence to establish a parent-child relationship between the child and the deceased number holder. It is our opinion that, under Texas law, the facts presented here are insufficient to establish the child’s paternity. The DNA Y Chromosome Report does not meet the Texas statutory requirements for genetic testing to establish paternity, as the DNA Y Chromosome Report did not exclude or identify the deceased number holder as the father of the child. ^[68] In addition, while Texas law provides that paternity can be established through other clear and convincing evidence, the facts presented in this case do not constitute clear and convincing evidence.

As we understand the facts, M~ (number holder), who was domiciled in Texas, died on October XX, 2009, while visiting his parents in Cuidad Juarez, Mexico. A~ was born to Liliana T~ on April. The number holder lived with in El Paso, Texas, for approximately four and a half years prior to his death, but they never married. A~’s birth certificate does not list a father.

On June 21, 2010, L~ filed for child’s benefits on A~’s behalf on the number holder’s account, claiming that the number holder was A~’s father. In support of her application, L~ provided a June 1, 2010, single grand-parentage DNA Report. ^[69] The DNA Report tested DNA samples from M~, the number holder’s mother; L~; and A~. The number holder’s father could not be tested because he died in the same incident in Cuidad Juarez, Mexico, as the number holder.

The single grand-parentage DNA Report showed that there was an 85.29 percent probability that one of M~’s sons was A~’s biological father. ^[70] On June 25, 2010, the Social Security Administration (agency) denied the June 2010 application for child’s benefits because the single grandparentage DNA Report did not meet the Texas statutory requirements for genetic testing to establish paternity, as the test showed that the probability of relationship was lower than Texas law requires in order to create a presumption of paternity. In addition, L~ failed to provide any other evidence to establish a biological relationship between the number holder and A~.

On September 3, 2010, the agency received L~’s request for reconsideration of the agency’s denial. In support of her request for reconsideration, L~ provided an August 26, 2010, DNA Y Chromosome Report based on samples taken from A~ and L~, the number holder’s brother, which showed a 99.93 probability that A~ and L~ shared a common male ancestor. L~ also provided two statements in support of the reconsideration – one from herself and one from L~ both stating that L~ lived with the number holder in El Paso, Texas, from April 2005 through his death in October 2009.

To be eligible for surviving child’s benefits on the account of an insured individual, a child must: (1) be that individual’s child for purposes of the Social Security Act (Act), (2) file for benefits, (3) be unmarried, (4) be either under the age of 18 or under age 19 and a full-time elementary or secondary school student, and (5) be dependent on the individual in question. 42 U.S.C. § 402(d)(1)(A)-(C). In this case, elements two, three, and four are satisfied. Additionally, if A~ is considered to be the number holder’s child, he will be considered to be dependent on the number holder, thus satisfying the fifth element. 20 C.F.R. § 404.361(a). Accordingly, the only remaining criterion A~ must establish is that he is the number holder’s child under the first element.

The Act provides that a child is considered the number holder’s child for benefit purposes if the child could inherit the number holder’s property as his natural child under the intestacy laws of the state in which the number holder was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). ^[71] At the time of his death, the number holder was domiciled in Texas.

Thus, we look to Texas law to determine whether A~ is the number holder’s child for purposes of intestate succession.

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code § 42(b)(1). For purposes of inheritance, a child is his biological father’s child if: (1) he was born under circumstances described in Section 160.201 ^[72] of the Family Code; (2) he was adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted Armando nor executed an acknowledgment of paternity. Thus, for L~ to establish that A~ had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods.

Under the first and second methods, if a court adjudicated A~ to be the number holder’s child, he would be entitled to child’s insurance benefits on the number holder’s account. See Tex. Fam. Code § 160.201(b)(3) (parent-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing, provided the DNA testing process and the DNA report meet specific requirements to establish reliability and authenticity. ^[73] See Tex. Fam. Code §§ 160.503, 160.504, 160.631. In this case, the DNA Y chromosome testing process and the DNA Y Chromosome Report met the requirements. ^[74]

Under Texas law, if the DNA testing process and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the child’s father. See Tex. Fam. Code § 160.505(a). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents, brothers or sisters, any other children of the man and their mothers, and other relatives. See Tex. Fam. Code § 160.508(a); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code §§ 160.505(b); 160.631.

Here, as Texas law allows, L~, the number holder’s brother, underwent DNA Y chromosome testing because the number holder is deceased. In this case, the DNA Y Chromosome Report revealed a 99.93 percent probability that L~ and A~ shared a common male ancestor, which satisfies the probability provision of the Texas Family Code. See Tex. Fam. Code § 160.505(a). However, the DNA Y Chromosome Report did not exclude or identify the number holder as the father of the child, which Texas law also requires. The Texas Family Code requires genetic testing to “exclude or identify a man as the father of a child.” See Tex. Fam. Code §§ 160.102(8) (“Genetic testing” means an analysis of an individual’s genetic markers to “exclude or identify a man as the father of a child”); 160.505(a) (“the man has at least a 99 percent probability of paternity”). In this case, the DNA Y Chromosome Report indicated only a common male lineage between the number holder’s brother and A~. Thus, the DNA Y Chromosome Report does not meet the Texas statutory requirements for genetic testing to establish paternity as the test did not exclude or identify the deceased number holder as the father of the child. ^[75] Accordingly, A~ would not be entitled to inherit from the number holder under the first or second methods for determining paternal inheritance rights.

A~ also cannot establish paternal inheritance rights under the fifth method, because the facts do not provide clear and convincing evidence that the number holder was A~’s biological father. See Tex. Prob. Code § 42(b)(1). The Texas Family Code defines “clear and convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code § 101.007. Although a Texas court will consider the June 2010 single grandparentage DNA Report that Ms. T~ submitted with her initial application, along with the August 2010 DNA Y Chromosome Report, when deciding whether the evidence in a particular case is clear and convincing, the DNA test results must demonstrate by clear and convincing evidence that the number holder was or was not Armando’s biological father. See T~, 768 F.Supp. at 479-80.

As discussed above, the single grandparentage DNA Report only showed an 85.29 percent probability that one of M2~’s sons was A~’s biological father, which falls below the probability threshold that Texas requires in order to create a rebuttable presumption of paternity. See Tex. Fam. Code § 160.505(a). In addition, the DNA Y Chromosome Report failed to exclude or identify the number holder as A~’s father, which Texas law also requires. See Tex. Fam. Code §§ 160.102(8), 160.505(a). Thus, the single grandparentage DNA Report and the DNA Y Chromosome Report do not constitute clear and convincing evidence that the number holder was A~’s biological father.

Moreover, the single grandparentage DNA Report and the DNA Y Chromosome Report also are not clear and convincing evidence that the number holder is A~’s biological father because they do not rule out M2~’ other son, L~ , as A~’s biological father. ^[76] Thus, further DNA testing of the number holder’s brother(s) would be necessary to rule him out as A~’s father. See Tex. Fam. Code § 160.505(c); Tex. Fam. Code § 160.508 (permits a court to order genetic testing of relatives, including brothers, when the alleged father is not available); Tex. Fam. Code § 160.631(e) (if a court finds that genetic testing does not identify or exclude a man as the father of a child, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity). Although L~ and L2~ stated that L~ lived with the number holder from April 2005 through his death in October 2009, we do not believe that these statements, standing alone, eliminate the possibility that L2~, or another man, could have fathered A~. Since L~’s and L2~ ’s statements would not instill a firm belief or conviction in a fact finder that the number holder was A~’s biological father, coupled with the fact that A~’s birth certificate does not name the number holder as A~’s father and no other corroborating evidence exists, we do not believe that a Texas court would find the statements to constitute clear and convincing evidence. Thus, L~ has not established paternal inheritance rights under any of the five methods provided under the Texas Probate Code.

The evidence is insufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, L~ cannot establish that the number holder is A~’s father, and the agency should not consider A~ to be the number holder’s child for Social Security purposes.

Michael McGaughran

Regional Chief Counsel

By: _____

Carolyn E. Whitson

Assistant Regional Counsel

A DNA test that satisfies both the reliability and authenticity requirements under Texas law and shows a 99.97 probability that the claimant is the half- biological sibling of the number holder’s legitimate child is sufficient to establish the parent-child relationship.

Under Texas law it does not establish legitimacy and, therefore, the relationship is only established prospectively no earlier than the date of the test.

This memorandum is in response to your request for a legal opinion on whether a siblingship deoxyribonucleic acid (DNA) test report establishes that C~ (C~) is B~’s (number holder’s) child. If C~ is the number holder’s child, you asked what is the effective date of the parent-child relationship. In our opinion, the available evidence is sufficient under Texas law to establish that C~ is the number holder’s child. We also believe that the DNA report grants inheritance rights to C~, but does not legitimate him. Thus, he is only entitled to benefits as of September 17, 2009, the date of his application for child’s benefits. 20 C.F.R. § 404.352(a)(1) (2010).

As we understand the facts, the number holder was married to K~ (K~) from 1980 to 1993. The number holder and K~ had a son, K2~ (K2~), who was born in 1985. A Social Security Numerical Identification query (NUMIDENT) on K2~ lists the number holder as K2~’s father. Also, records from the Texas Department of State Health Services, Vital Statistics Unit, verifies that the number holder was K2~’s father. On August X, 1997, S~ (S~) gave birth to her son, C~. There is no evidence that documents a marital relationship between the number holder and S~. C~’s birth certificate did not list a father. No evidence indicates that the number holder acknowledged C~ in writing or that a court issued an order declaring paternity or requiring the number holder to provide support for C~.

On November XX, 2007, the number holder died while domiciled in Texas. On September 17, 2009, S~ filed a claim for Social Security child’s insurance benefits on behalf of C~ on the number holder’s account. In support of her claim, S~ provided a July 31, 2009, siblingship DNA report. Independent Forensics, an American Association of Blood Banks (AABB) accredited testing facility, conducted the DNA test with samples from C~ and K2~. The DNA report indicates a combined sibling index of 3,402 to 1 and a 99.97% probability that C~ and K~ have the same father. The report includes the following evidence to document the chain of custody of the DNA samples: (1) C~’s and K~’s names and photographs; (2) the names of the phlebotomists who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of the individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. P. W. B~, Ph.D., the laboratory director, certified the DNA analysis report.

To be entitled to child’s benefits on an insured number holder’s account, a child must:

(1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5) (2010). Here, S~ applied for benefits on C~’s behalf. C~ is unmarried and under the age of 18. The agency will consider C~ to be dependent upon the number holder if C~ is the number holder’s natural child. See 20 C.F.R. § 404.361(a) (2010). Thus, the only remaining criterion C~ must establish is that he is the number holder’s natural child.

A claimant proves that he is a number holder’s natural child if: (1) he could inherit property through intestate succession as the number holder’s natural child; (2) he is the number holder’s natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder is the claimant’s natural parent and was either living with the claimant or contributing to his support at the time the claimant applied for benefits. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3) (2010); 20 C.F.R. § 404.355(a)(1)-(4) (2010). We have no information indicating that S~ and the number holder were ever married. The number holder apparently never acknowledged C~ as his child, and no court decreed C~ to be his child or ordered him to pay child support. No evidence shows that C~ lived with the number holder or received support from him. In fact, the number holder died in 2007, and S~ did not file for child’s benefits on his account until 2009. Thus, we conclude that C~ does not qualify as the number holder’s natural child under tests two, three, or four. Consequently, to prove that he is eligible for child’s benefits on the number holder’s account, S~ must show under the first test that C~ could inherit property through intestate succession as the number holder’s child. Texas law controls because the number holder had his permanent home in Texas when he died. See 42 U.S.C. § 416(h)(2)(A) (2010); 20 C.F.R. §§ 404.355(a)(1), (b) (2010).

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2010). Under Texas law, a child is the child of his biological father if: (1) he was born under circumstances described in Section 160.201 of the Family Code ^[77] ; (2) a court adjudicated him to be the child of the father as provided by Chapter 160 of the Family Code; (3) the father adopted him; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the child’s biological father. Id. The third and fourth methods set out in the Texas Probate Code are not applicable in this case, as the number holder neither adopted C~ nor executed an acknowledgment of paternity. See id. Thus, S~ must establish that C~ had a right to paternal inheritance from the number holder under the first, second, or fifth methods.

Under the first test, Section 160.204 of the Texas Family Code provides that the State will presume paternity in certain situations, which do not apply here. There is no evidence of any purported marital relationship at any time between S~ and the number holder. There is no evidence suggesting that C~ lived with the number holder during the first two years of his life or that the number holder acknowledged C~ as his child. No court has found that the number holder is C~’s father, and the number holder did not adopt C~. There is no evidence suggesting that the number holder and S~ were married or that C~ was conceived through assisted reproduction. Accordingly, the number holder cannot be C~’s presumed father under the first method.

Under the second method of establishing a parent-child relationship, if a court adjudicated C~ to be the number holder’s child, he would be entitled to child’s insurance benefits on the number holder’s account. See Tex. Fam. Code Ann. § 160.201(b)(3) (Vernon 2010) (parent-child relationship is established between a man and a child by an adjudication of the man’s paternity). Although the evidence submitted indicates that C~ is a Plaintiff in a wrongful death action involving the number holder, the case is still pending in the state county court, and there is no indication that any court has ruled that C~ is the number holder’s child. We are also unaware of any other adjudication of paternity in this case. Nevertheless, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, “we will not require that you obtain such a determination.” 20 C.F.R. § 404.355(b)(2) (2010). Instead, the agency “decide[s a child’s] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id.

Texas courts allow genetic DNA testing to establish paternity, provided the DNA testing and DNA test report meet specific reliability and authenticity requirements. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631 (Vernon 2010); see also In re Office of Atty Gen., 276 S.W.3d 611, 615 (Tex.App. – Houston [1st Dist.] 2008). First, the DNA testing must take place in a laboratory accredited by the AABB, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. See Tex. Fam. Code Ann. § 160.503(a) (2010). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2010). Third, the report must establish a reliable chain of custody through testimony or documentation. See Tex. Fam. Code Ann. § 160.504(b) (Vernon 2010). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Id.

Under Texas law, if the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the father of a child. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2010); see also In re Z.L.T., 124 S.W.3d 163, 164 n. (Tex. 2003). A court may order testing of an alleged father or of an alleged father’s relatives, including parents, siblings, other children, and other relatives, when a specimen from an alleged father is not available. See Tex. Fam. Code § 160.508(a)(1) (Vernon 2010). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631 (Vernon 2010).

Because the number holder is deceased, there was no genetic specimen available for testing to establish that the number holder was C~’s father. Instead, C~ and K~ provided samples for a siblingship DNA test. The DNA testing took place at Independent Forensics, an AABB-accredited facility. The testing facility documented the chain of custody with C~’s and K~’s names and photographs. The facility identified the persons who collected the specimens, as well as the time and place that they collected the specimens. Finally, the facility documented the names of the individuals who received the specimens in the laboratory and the date they received the specimens. Dr. B~, the laboratory’s designee, signed the test report before a notary public and verified the interpretation of the results. The testing revealed a combined paternity index of 3,402 to 1 and a 99.97% probability that C~ and K~ have the same biological father. Because the DNA test satisfies both the reliability and authenticity requirements under Texas law, we believe that the report satisfies Texas state law standards for establishing that the tested subjects are half- biological siblings.

Thus, we must determine who K~’s father is, so that we can identify whether the number holder is C~’s father. ^[78] According to the information you provided, K~ was born on March, during the marriage of the number holder and K2~, K~’s mother. Both a NUMIDENT on K~’s account and information from the Texas Department of State Health Services document the father-child relationship between the number holder and K~. Under the Texas Uniform Parentage Act, an unrebutted presumption of a man’s paternity can establish a father-child relationship. Tex. Fam. Code Ann. § 160.201 (Vernon 2010). When a child is born during a period that the child’s mother is married to a man, the man is presumed to be the child’s father. Tex. Fam. Code Ann. § 160.204 (Vernon 2010). Because the number holder was married to K~’s mother when K~ was born, the number holder is K~’s presumed father. Consequently, the DNA test results showing a 99.97% probability that K~ and C~ have the same biological father sufficiently establishes that the number holder is also C~’s father.

With respect to the first possible month of entitlement to benefits, agency policy provides that acts that legitimate a child generally operate retroactively to the birth of the child. SSR 85-17. Acts that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. The provision of Texas law that allows an illegitimate child to inherit property from his father does not legitimate the child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2010). Instead, it merely confers inheritance rights. See id. In this case, the act that conferred inheritance rights to C~ was the DNA test report of July 29, 2009.

The child of a deceased number holder becomes entitled to benefits in the first month covered by his application in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1) (2010). As indicated above, these requirements include proof that the child: (1) is the number holder’s child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5) (2010). Here, C~ met all requirements for entitlement on September 17, 2009, the date S~ filed an application for child’s insurance benefits on C~’s behalf. We therefore conclude that he became entitled to child’s insurance benefits as of that date. Because C~ did not meet all requirements for entitlement until September 17, 2009, and because actions that confer inheritance rights operate only from the date of their occurrence, he is not entitled to a retroactive award of benefits on the number holder’s account.

Michael McGaughran

Regional Chief Counsel

By: _____

James D. Sides

Assistant Regional Counsel

In Texas, DNA testing of a paternal grandparent showing a 99.84 percent probability that one of her sons was the claimant's biological father would satisfy the Texas Family Code threshold of a 99 percent probability of paternity if similar testing were to exclude grandparent's other sons as the father.

In this specific case, however, the report is not notarized or signed under penalty of perjury and cannot satisfy the admissibility requirements under the Texas Family Code.

This memorandum is in response to your request for an opinion regarding whether a deoxyribonucleic acid (DNA) test involving one paternal grandparent can establish a child relationship under Texas law. It is our opinion that under Texas law a properly certified grandparentage DNA test involving one paternal grandparent, in some situations, is sufficient evidence to establish that the child is the number holder’s biological child, provided that the grandparent’s other sons can be ruled out as the child’s father. However, the facts presented here are insufficient to establish the child’s paternity because the DNA test did not meet the Texas statutory requirements for genetic testing to establish paternity. Specifically, a designee of the testing laboratory did not sign the DNA test report under penalty of perjury and the grandparent’s other sons have not been ruled out as the child’s biological father.

As we understand the facts, on December XX, 1976, C~ (number holder) was born to Dorothy (formerly known as D~) (D~) and an unknown father. Neither the number holder’s birth certificate nor his Social Security record names his father. D~ reports that she had two other sons, L~ and P~. On July XX, 1998, the number holder died while domiciled in Texas.

D2~ was born on August, to J~ (now J~). D2~’s birth certificate does not name a father. J~ initially believed someone other than the number holder was D2~’s biological father, but a DNA ruled out this other man. No witness has stated that the number holder ever acknowledged D2~ as his son. The numberholder and D2~ were never married.

In August 2001, D2~ filed an application on D2~’s behalf for child’s benefits on the number holder’s account. She claimed that the number holder was D2~’s father. D2~ stated that the number holder knew about D2~, but never addressed D2~ as his child. She provided statements from two of the number holder’s cousins, stating that D2~ was the number holder’s son. D~, the number holder’s mother, also provided a statement indicating that D2~ was her grandson and that the number holder knew of D2~. Because J~ did not provide clear and convincing evidence that the number holder was D2~’s father, the Social Security Administration (agency) denied the August 2001 application for child’s benefits.

On May 2, 2008, J~ filed a second application on D2~’s behalf for child’s benefits on the number holder’s account. To support this application, J~ submitted a grandparentage DNA test report of D~ dated April 4, 2008, as well as statements from the number holder’s brothers. The grandparentage DNA test shows that there is a 99.84% probability that one of D~’s sons is D2~’s biological father. Statements from the number holder’s brothers, L~ and P~, allege that neither is D2~’s biological father and that they both first met J~ after D2~’s birth.

To be entitled to child’s benefits on the account of an insured number holder, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, J~ applied for benefits on D2~’s behalf. D2~ is unmarried and under the age of 18. The agency will consider D2~ to be dependent upon the number holder if D2~ is the number holder’s child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criteria D2~ must satisfy is establishing that he is the number holder’s child.

To determine whether an applicant is a deceased number holder’s child, the Commissioner will apply the intestacy laws of the state in which the number holder had his permanent home. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Texas law controls because the number holder’s permanent home was in Texas when he died. Thus, D~’s eligibility for child’s benefits depends upon whether he could inherit property through intestate succession under the laws of Texas as the number holder’s child. See id.

Texas law provides five ways for a child to show that he has a right to inherit property from his purported biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2009). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) a court found him to be the purported father’s child under chapter 160 of the Texas Family Code; (3) the purported father adopted him; (4) the purported father executed an acknowledgment of paternity; or (5) clear and convincing evidence establishes that the purported father was his biological father. See id.

The first, third, and fourth methods set forth in the Texas Probate Code are not relevant to the facts of this case. D~ was not born under the circumstances described in section 160.201 of the Texas Family Code. The number holder neither adopted D~ nor executed an acknowledgment of paternity. Thus, if J~ is to establish that D~ had a right to paternal inheritance from the number holder, it must be under either the second or fifth method.

The second method is also not applicable because the genetic testing Jennifer provided is insufficient to establish that the number holder is D~’s father. No court found D~ to be the number holder’s child, as provided in Chapter 160 of the Uniform Parentage Act of the Texas Family Code. See Tex. Fam. Code Ann. § 160.201 (2009) (father-child relationship is established between a man and a child by an adjudication of the man’s paternity). Despite the absence of a court order declaring paternity, the Commissioner does not require the child to obtain such an order to be eligible for child’s benefits. 20 C.F.R. § 405.355(b)(2). Instead, the Commissioner will apply the law that the state court would apply to determine the child’s paternity. See id.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing. See Tex. Fam. Code Ann. § 160.631 (Vernon 2009). A man is rebuttably identified as the father of a child if genetic testing reveals a 99 percent probability of paternity. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2009). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man’s parents. See Tex. Fam. Code Ann. § 160.508(a)(1) (Vernon 2009); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-580 (S.D. Tex. 1991) (after death of putative father, Texas court may draw inferences from grandparentage DNA testing to determine paternity).

Here, D2~, the purported paternal grandmother of D~, underwent the grandparentage DNA testing because the number holder is deceased. The purported paternal grandfather could not be tested, as his identity is not known. However, there is no explicit requirement under Texas law that both paternal grandparents participate in the DNA testing for the testing to be valid. Instead, the issue is whether DNA test results of the individuals who are available for testing satisfy the probability and admissibility provisions of the Texas Family Code. Because D2~’s grandparentage DNA test showed a 99.84 percent probability that one of her sons was D~’s biological father, the test results would satisfy the Texas Family Code threshold of a 99 percent probability of paternity if similar testing were to exclude D2~’s other sons as D~’s biological father.

Although the grandparentage DNA test results could satisfy the probability provisions of the Texas Family Code, the results do not satisfy the admissibility provisions because the test results were not notarized and did not follow the proper chain of custody guidelines. Under the Texas Family Code, genetic testing must satisfy certain requirements to be admissible. Tex. Fam. Code Ann. § 160.503 (Vernon 2009). First, the testing must take place in a laboratory accredited by the American Association of Blood Banks (AABB) or another satisfactory accrediting body. See Tex. Fam. Code Ann. § 160.503(a) (Vernon 2009). Second, a laboratory designee must sign the test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2009).

DNA testing in this case took place at the Identigene DNA Testing Center, a facility accredited through Forensic Quality Services-International (FQS-I). David, Ph.D., the laboratory director, signed the test report. However, the report is not notarized and the report states that the testing did not comply with chain-of-custody guidelines. Because the grandparentage DNA testing was not signed under penalty of perjury, it would not be admissible evidence in a Texas court to establish paternity. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2009). For this reason, the grandparentage DNA test does not satisfy the requirements of the Texas Family Code. Thus, D~ would not be entitled to inherit from the number holder under the second method for determining paternal inheritance rights.

D2~ also cannot establish paternal inheritance rights under the fifth method, which requires he provide clear and convincing evidence that the number holder was his biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2009). The Texas Family Code defines “clear and convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (Vernon 2009). Although a Texas court will consider grandparentage DNA test results when deciding whether the evidence in a particular case is clear and convincing, the test must first be admissible in court. See T~, 768 F.Supp. at 479-480. As discussed above, D~’s grandparentage DNA test report is not notarized or signed under penalty of perjury, and cannot satisfy the admissibility requirements under the Texas Family Code. The grandparentage DNA test report also is not clear and convincing evidence that the number holder is D2~’s biological father because it does not rule out D~’s other sons, L~ and P~, as D2~’s biological father. Thus, DNA evidence is needed to rule out the number holder’s brothers as D2~’s father. See Tex. Fam. Code § 160.505(c) (2009) (“if more than one man is identified by genetic testing as the possible father of the child, the court shall order each man to submit to further genetic testing to identify the genetic father”); Tex. Fam. Code § 160.508 (2009) (permits a court to order genetic testing of relatives, including brothers, when the alleged father is not available); Tex. Fam. Code § 160.631 (2009) (if a court finds that genetic testing does not identify or exclude a man as the father of a child, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity). Although L~ and P~ made statements that they could not be D2~’s biological father, we do not believe that these statements alone can eliminate the possibility that either could have fathered D2~. Thus, D2~ or his mother have not established paternal inheritance rights under any of the five methods provided under the Texas Probate Code. For this reason, we cannot conclude that D2~ is the number holder’s child for child’s benefits purposes.

Michael McGaughran

Regional Chief Counsel

By: _____

James D. Sides

Assistant Regional Counsel

While Texas law does allow testing one paternal grandparent in order to establish a parent-child relationship, the results in this case do not meet the threshold of a 99 percent probability needed to establish a rebuttable presumption of paternity nor was the documentation of the test itself sufficient to be used as proof in a Texas court.

You asked us to provide a legal opinion regarding whether, under Texas law, a deoxyribonucleic acid (DNA) test involving one purported paternal grandparent is sufficient to establish a parent-child relationship between the grandparent's deceased son and a child, when the DNA test report shows a 97.67 percent probability that the grandparent and child are related. It is our opinion that, under Texas law, a grandparentage DNA test involving one paternal grandparent may, in some instances, be sufficient evidence to establish that the child is the deceased son's biological child, provided that the grandparent's other sons can be ruled out as the child's father. However, the facts presented here are insufficient to establish the child's paternity because the DNA test did not meet the Texas Statutory requirements for genetic testing to establish paternity. A designee of the testing laboratory did not sign the DNA test report under penalty of perjury, the documentation is insufficient to establish a reliable chain of custody, and the probability of relationship is lower than Texas requires in order to create a presumption of paternity. In addition, while Texas law provides that paternity can be established through other clear and convincing evidence, the facts presented in this case do not constitute clear and convincing evidence.

According to the information you provided us, T~, the number holder, died on January XX, 2003, while domiciled in Texas. L~ was born to L2~ on March. L~'s birth certificate identifies no father. The number holder never married or lived with L2~, and did not provide support for L~.

On April xx, 2008, L2~ filed for child's benefits on the number holder's account on L~'s behalf, claiming that the number holder was L~'s father. The number holder's mother, M~ , provided a statement that the number holder told her he had children, but M~ did not know who the mothers were. M~ indicated that L2~ told her at the number holder's wake that L~ was the number holder's daughter. Since the number holder did not acknowledge paternity, no court had found the number holder to be L~'s father, and L2~ failed to provide clear and convincing evidence that the number holder was L~'s father, the Social Security Administration (agency) denied the April 2008 application for child's benefits.

On February xx, 2009, L2~ filed a second application for child's benefits on the number holder's account on L~'s behalf. To support this application, L2~ submitted a grandparentage DNA test report dated February xx, 2009. The grandparentage DNA test report showed a 97.67 percent probability that M~ was L~''s grandmother. This report was based on DNA testing of L2~, L~', and M~. Johnie M~, the number holder's father, is alive but was not tested.

To be eligible for child's insurance benefits on the account of an insured individual, a child must: (1) be that individual's child for purposes of the Social Security Act, (2) file for benefits, (3) be unmarried, (4) be either under the age of 18 or under age 19 and a full-time elementary or secondary school student, and (5) be dependent on the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C). In this case, L2~ applied for benefits on L~'s behalf. L~ is unmarried and under the age of 18. The agency will consider L~ to have been dependent upon the number holder if L~ is the number holder's child. See 20 C.F.R. § 404.361(a). Thus, we next determine whether she is the number holder's child.

Under the Act, a child can establish a parent-child relationship with a number holder if the laws of the state in which the number holder was domiciled when he died allow the child to inherit from the number holder through intestate succession. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (b)(4). Thus, L~'s eligibility for child's benefits depends upon whether she could inherit property from the number holder through intestate succession. See id. Texas law controls because the number holder had his permanent home in Texas when he died.

The Texas Probate Code provides the framework for determining father-child relationships for inheritance purposes. Tex. Prob. Code § 42(b)(1) (2009). For purposes of inheritance, a child is the child of his biological father if: (1) she was born under circumstances described in Section 160.201 of the Family Code; (2) she was adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; (3) she was adopted by the father; (4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D of Chapter 160 of the Family Code; or (5) clear and convincing evidence establishes that the purported father was the biological father of the child. Id. The third, and fourth methods set forth in the Texas Probate Code are not applicable in this case, as the number holder neither adopted L~ nor executed an acknowledgment of paternity. See id. Thus, for L2~ to establish that L~ had a right to paternal inheritance from the number holder, it must be under the first, second, or fifth methods.

Under the first and second methods, if a court adjudicated L~ to be the number holder's child, she would be entitled to child's insurance benefits on the number holder's account. See Tex. Fam. Code § 160.201(3) (parent-child relationship is established between a man and a child by an adjudication of the man's paternity). Although we are unaware of an adjudication of paternity in this case, Social Security regulations provide that, if applicable state inheritance law requires a court determination of paternity, "we will not require that you obtain such a determination." 20 C.F.R. § 404.355(b)(2). Instead, the agency "decide[s a child's] paternity by using the standard of proof that the State court would use as the basis for a determination of paternity." Id.

In determining paternity under chapter 160 of the Texas Family Code, a Texas court will consider the results of genetic testing, provided the DNA testing and DNA test report meet specific requirements to establish reliability and authenticity. See Tex. Fam. Code §§ 160.503, 160.504, 160.631. First, the DNA testing must take place in a laboratory accredited by the American Association of Blood Banks, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. See Tex. Fam. Code § 160.503(a). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See Tex. Fam. Code § 160.504(a). Third, a reliable chain of custody must be established through testimony or documentation. See Tex. Fam. Code § 160.504(b). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Id.

Under Texas law, if the DNA testing and DNA test report satisfy those requirements, and the testing reveals at least a 99 percent probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the father of a child. See Tex. Fam. Code § 160.505(a). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man's parents. See Tex. Fam. Code § 160.508(a)(1); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-80 (S.D. Tex. 1991) (after death of purported father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code §§ 160.505(b); 160.631.

Here, M~, the purported paternal grandmother of L~, underwent grandparentage DNA testing because the number holder is deceased. Although the purported paternal grandfather was not tested, there is no explicit requirement under Texas law that both paternal grandparents must participate in DNA testing for the court to determine paternity. Rather, when a man is deceased, section 160.508 of the Texas Family Code allows DNA testing of his parents, brothers or sisters, any other children of the man and their mothers, and other relatives. Tex. Fam. Code § 160.508(a). Thus, we believe that a DNA test of only one purported grandparent may, in certain instances, be sufficient to establish a parent-child relationship with the deceased. In this case, however, the DNA testing and DNA test report did not satisfy Texas law requirements to establish reliability and authenticity. See Tex. Fam. Code §§ 160.503, 160.504, 160.631.

DNA testing in this case took place at Chromosomal Laboratories, a facility accredited by the American Association of Blood Banks. S~, Ph.D., Assistant Paternity Laboratory Director, signed the DNA test report. However, Dr. H~ did not declare that she signed the report under penalty of perjury. Moreover, the DNA test report does not document the chain of custody. While the DNA test report identifies L~, M~, and L2~ as individuals from whom specimens were taken, the report does not include photographs of these individuals, and does not identify each individual who collected the specimens. See Tex. Fam. Code § 160.504(b)(1)-(2). Nor does the DNA test report identify the places and dates the specimens were collected, the names of individuals who received the specimens in the testing laboratory, or the dates the laboratory received the specimens. See id. § 160.504(b)(3)-(5). Consequently, a Texas court would not consider the February 6, 2009 DNA test report as evidence of the number holder's paternity.

Furthermore, the DNA test report showed only a 97.67 percent probability that one of Mary's sons was L~'s biological father. Such probability is below the 99 percent probability threshold Texas requires in order to create a presumption of paternity. See Tex. Fam. Code § 160.505(a). Because the DNA test report does not satisfy the admissibility requirements and reveals a relationship probability below the threshold, L~ would not be entitled to inherit from the number holder under the first or second method for determining paternal inheritance rights.

L~ also cannot establish paternal inheritance rights under the fifth method, because the facts do not provide clear and convincing evidence that the number holder was L~'s biological father. See Tex. Prob. Code § 42(b)(1). The Texas Family Code defines "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007. Although a Texas court will consider grandparentage DNA test results when deciding whether the evidence in a particular case is clear and convincing, the test report must first be admissible in court. See T~, 768 F.Supp. at 479-80. As discussed above, the grandparentage DNA test report was not signed under penalty of perjury and did not properly document the chain of custody. Thus, the report fails to satisfy the admissibility requirements under the Texas Family Code. See Tex. Fam. Code § 160.504.

In addition, as discussed above, the 97.67 percent probability that one of M~'s sons was L~'s biological father is below the probability threshold the Texas requires in order to create a rebuttable presumption of paternity. See Tex. Fam. Code § 160.505(a). Thus, it is clear that the grandparentage DNA test report cannot constitute clear and convincing evidence that the number holder was L's biological father.

The only other evidence favorable to L2~'s claim that the number holder was L~'s biological father consists of statements from M~ that the number holder told her he had children, and from Ms. J~ that the number holder once provided money for L~. Since these statements would not instill a firm belief or conviction in a fact finder that the number holder was L~'s biological father, we do not believe that a Texas court would find these statements to constitute clear and convincing evidence. Here, the evidence is insufficient to establish paternal inheritance rights under the Texas Probate Code. Consequently, L2~ cannot establish that the number holder is the child's father, and the agency should not consider L~ to be the number holder's child for Social Security purposes.

Michael McGaughran

Regional Chief Counsel

By: _____

Keith A. Garner

Assistant Regional Counsel

Texas law provides that the mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity. Such an acknowledgment meeting the criteria set forth in the Texas Family code is sufficient to establish a parent-child relationship.

This memorandum is in response to your request for an opinion regarding whether a parent-child relationship has been established between the number holder, F~ and J~ under Texas law, and if so, what date J~ was entitled to child's benefits. In our opinion, the Social Security Administration (Agency) should consider J~' child for the purpose of receiving child's benefits. As such, J~ is entitled to child's benefits beginning September 2005, the month F~ applied for child's benefits on J~'s behalf.

As we understand the facts, on August XX, 1991, L~, also known as L~, gave birth to J~. L~ was not married at the time of J~'s birth, and she did not list anyone as J~'s father on his birth certificate. At some point, L~ reported that L2~ was J~'s father, but in December 1993, the 77th Judicial District Court of Limestone County, Texas found that paternity testing, performed in compliance with Section 13.02 of the Texas Family Code, showed by clear and convincing evidence that L2~ was not J~'s father. According to Agency notes, L~ completed an application for Temporary Assistance for Needy Families (TANF) and food stamps in 1997, and she listed J~'s possible fathers as Adollus H~ and Leslie J~ T~ on this application.

F~ applied for disability insurance benefits (DIB) under Title II of the Social Security Act (Act) on November 6, 1998. F~ did not list J~ as his child on his application. On March xx, 2000, an Administrative Law Judge (ALJ) found that F~ had been disabled since June xx, 1998.

F~ had an ongoing relationship with Phylis G~, also known as Phylis G~ P~ (Ms. G~), who is L~'s mother. In an unsigned and undated statement, F~ stated that he had intercourse with Ms. G~'s daughter, L~, one weekend. He could not remember the date, but he reported that L~ was fifteen years old. On June xx, 2005, F~ completed an acknowledgement of paternity in the State of Texas, declaring that he was J~'s father. That same day, Mr. P~ and L~ completed an application for a new birth certificate based on parentage, requesting that the State list Mr. P~ as J~'s father. Mr. P~ signed several statements with the Agency acknowledging that he was J~'s biological father.

On September xx, 2005, when J~ was 13 years old, Mr. P~ applied for child's insurance benefits on J~'s behalf. On December xx, 2006, the 87th Judicial District Court in Leon County, Texas issued an Order Adjudicating Parentage in Case No. FL-06-353, declaring Mr. P~ to be J~'s father. The Court stated that Mr. P~ had admitted to the paternity by pleading or in open court under oath, and the Court found that there was no reason to question Mr. P~' admission. The Court appointed Mr. P~ and L~ as joint managing conservators of J~, and the Court gave Mr. P~ the exclusive right to designate J~'s primary residence, without regard to geographic location.

Pursuant to the Act, a child of an individual who receives old-age or disability benefits is entitled to child's insurance benefits if he (1) is the insured's child as defined in the Act; (2) has applied for such benefits; (3) is unmarried; (4) is under the age of eighteen; and (5) was dependent upon the insured at the time the insured filed the application for child's benefits. See 42 U.S.C. § 402(d)(1) (2007); 20 C.F.R. § 404.350 (2007). Here, Mr. P~ applied for child's benefits on behalf of J~, who is unmarried and under the age of eighteen. If the applicant for child's benefits is the insured's child as defined in section 216(e), the Agency considers the child dependent upon the insured for purposes of determining eligibility for child's benefits. See 20 C.F.R. § 404.361(a) (2007).

Section 216(e) of the Act defines the term child as including "the child or legally adopted child of an individual." 42 U.S.C. § 416(e) (2007). An applicant may show that he is the child of an insured number holder by presenting evidence establishing one of the following four circumstances:

1. (a) 

   The applicant could inherit the insured's property as the insured's child under the law of intestate succession in the state where the insured was domiciled at the time the application was filed. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b) (2007);

2. (b) 

   The insured individual and the mother of the child went through a marriage ceremony which resulted in a purported marriage between them that, except for a procedural defect, would have been a valid marriage. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);

3. (c) 

   The insured individual acknowledged in writing that the applicant was his son, was decreed by a court to be the father, or was ordered to contribute to the support of the child (subject to certain time limitations). See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3); or

4. (d) 

   Evidence satisfactory to the Commissioner of Social Security shows that the insured is the child's father, and the insured was living with or contributing to the child's support at the time the child filed the application for benefits. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

If the evidence establishes any of the above factual scenarios, the Agency considers the applicant the insured's child for purposes of entitlement to child's benefits. See 42 U.S.C. § 416(h)(3).

It is first necessary to consider whether the individual is the insured's child under the law of intestate succession. See 42 U.S.C. § 416(h)(2)(A). To determine the devolution of intestate personal property, the Act states that we must apply the law of the state in which the insured individual lived at the time the applicant filed the application. Id.; 20 C.F.R. § 404.355(b)(1), (3). Because Mr. P~ was domiciled in Texas in September 2005, when he applied for child's insurance benefits on J~'s behalf, we must determine if J~ could inherit Mr. P~' property under Texas law.

The Texas Probate Code specifies five methods for a child to show that he has a right to inherit property from his purported biological father. Tex. Prob. Code Ann. § 42(b)(1) (2007). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) the purported father adopted him; (3) the purported father executed an acknowledgment of paternity; (4) a court found him to be the purported father's child; or (5) clear and convincing evidence establishes that the purported father was his biological father. Id.

In the instant case, Mr. P~ executed an acknowledgement of paternity on June 22, 2005, almost three months before Mr. P~ applied for child's insurance benefits on J~'s behalf. See Tex. Prob. Code Ann. § 42(b); Tex. Fam. Code Ann. § 160.201(b). Texas law provides that the mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man's paternity. Tex. Fam. Code Ann. § 160.301 (2007). An acknowledgement of paternity must meet the following requirements:

1. (a) 

   be in a record;

2. (b) 

   be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity;

3. (c) 

   state that the child whose paternity is being acknowledged does not have a presumed father or has a presumed father whose full name is stated, and does not have another acknowledged or adjudicated father;

4. (d) 

   state whether there has been genetic testing and, if so, that the acknowledging man's claim of paternity is consistent with the results of the testing; and

5. (e) 

   state that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after four years.

Tex. Fam. Code Ann. § 160.302(a)(1)-(5) (2007).

Here, the acknowledgement of paternity meets the above requirements, as (1) it is in the record of the Bureau of Vital Statistics for the Texas Department of Health; (2) Mr. P~ and Ms. H~ signed the acknowledgement under penalty of perjury; (3) it states that J~ does not have a presumed or other acknowledged or adjudicated father; (4) it states that genetic testing has not been performed; and (5) it states that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after four years. Because the acknowledgment of paternity met the requirements set forth under Texas law, J~ has established that he can inherit from Mr. P~, and Mr. P~ has properly established that J~ is his child under Texas intestate succession law. See Tex. Prob. Code Ann. § 42(b); Tex. Fam. Code Ann. § 160.201(b)(2).

Although the acknowledgement of paternity is sufficient alone, Texas law provides that J~ can inherit from Mr. P~ because a court adjudicated J~ to be Mr. P~' child. See Tex. Prob. Code Ann. § 42(b); Tex. Fam. Code Ann. § 160.201(b)(3). As stated above, in December 2006, the 87th Judicial District Court in Leon County, Texas issued an Order Adjudicating Parentage, which declared Mr. P~ to be J~'s father. This Order Adjudicating Parentage satisfies the requirement in the Texas Family Code for an "adjudication of the man's paternity." Tex. Fam. Code Ann. § 160.201(b)(3). Because J~ presented evidence establishing the first circumstance set forth under the Act - that he could inherit from Mr. P~ under Texas law - J~ is considered Mr. P~' child for purposes of entitlement to child's benefits. See 42 U.S.C. § 416(h)(3). Thus, it is not necessary for us to determine whether J~ presented evidence establishing the second, third, or fourth circumstances the Act provides for an applicant to show he is the child of an insured number holder. See 42 U.S.C. § 416(h)(2), (h)(3)(B); 20 C.F.R. § 404.355(a).

In sum, J~ is entitled to child's benefits on Mr. P~' earnings record because he meets all of the requirements in the Act and regulations. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. J~ is Mr. P~' child; Mr. P~ applied for child's benefits on J~'s behalf; J~ was unmarried; and he was under the age of eighteen. See 20 C.F.R. § 404.350(a). In addition, the Agency will consider J~ to be dependent upon Mr. P~' because J~ is Mr. P~' child. See 20 C.F.R. § 404.361(a).

You also asked what date J~ is entitled to child's benefits. The Act and regulations provide that when an insured is living and the child's first month of entitlement is after September 1981, a child's entitlement to child's benefits begins with the first month throughout which the child meets all other requirements for entitlement. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a) (2007). As indicated above, these requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of eighteen. See 20 C.F.R. § 404.350(a)(1)-(5). Here, J~ met all requirements for entitlement in September 2005, the month Mr. P~ filed for child's benefits on J~'s behalf. Thus, J~ is entitled to child's benefits beginning in September 2005.

For the above reasons, we believe that J~ is Mr. P~' child for the purpose of receiving child's benefits, and J~ is entitled to child's benefits beginning in September 2005.

Tina M. Waddell

Regional Chief Counsel

By: _____

Anne L. Hamilton

Assistant Regional Counsel

Under Texas law, a Mississippi court judgment, which acknowledges the DNA test results and finds the number holder to be the legal, biological father of the claimant, establishes the parent-child relationship and meets the requirements for intestate succession.

You have asked us to provide a legal opinion regarding whether K~ may be entitled to Social Security survivor benefits on the earnings record of L~, the deceased number holder (number holder). Specifically, you asked whether a Mississippi court judgment and/or the results of a deoxyribonucleic acid (DNA) test are sufficient evidence to establish the parent-child relationship between K~ and the number holder under Texas law. In our opinion, the Mississippi court judgment, which acknowledges the DNA test results and finds the number holder to be the legal, biological father of K~, establishes the parent-child relationship under Texas law. Consequently, the Social Security Administration (the Agency) should treat K~ as the number holder's child. As such, she is entitled to apply for benefits on the number holder's Social Security record.

As we understand the facts, K~, now K~, married M~ in 1978. K~ and M~ separated in 1988, and they remained separated until they divorced. During the time she was separated from M~, K~ began a relationship with the number holder. K2~ and the number holder lived together from February 1991 through May 1991 and from February 1992 through May 1992, but they never married each other. On December 1, 1992, while separated but still legally married to M~, K2~ gave birth to K~. The birth certificate names M~ as K~'s father. K2~ and M~ divorced sometime in 1993 or 1994. K2~ married Tony in 1994. On February XX, 2006, the number holder died while domiciled in Texas. After the number holder's death, ReliaGene Technologies, Inc. (laboratory) tested DNA samples from K2~, K~, and the deceased number holder to determine if the number holder could be excluded as the biological father of K~. On December 28, 2006, the laboratory issued a report that states the DNA test results do not exclude the number holder as the biological father of K~. On March 7, 2007, the Chancery Court of Tishomingo County, Mississippi issued a judgment finding that the number holder was the legal, biological father of K~, based on the DNA test results.

To determine whether an applicant is the child of a deceased wage earner for the purposes of the Social Security Act (Act), the Commissioner will apply the intestacy laws of the state in which the wage earner was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). If, under state law, a child could take intestate personal property as a number holder's child, she is considered the number holder's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). Thus, the establishment of a parent-child relationship for Social Security benefits purposes in this case depends on whether the applicant could inherit property through intestate succession as the child of the deceased wage earner.

Because the number holder was domiciled in Texas at the time of his death, the question is whether a Texas court would consider K~ to be the number holder's child for purposes of intestate succession. The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. These methods are as follows: 1) the child is born under circumstances described in section 160.201 of the Family Code; 2) the child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; 3) the father adopted the child; 4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D, Chapter 160 of the Family Code; or 5) the child establishes by clear and convincing evidence that the purported father was the biological father of the child. See Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204. An action to establish paternity can be brought after the death of the alleged father. See In the Interest of A.S.L., 923 S.W.2d 814, 817-18 (Tex. App. - A~1996, no writ). Under the facts of this case, only the first and second methods are relevant to establish K~'s right to paternal inheritance.

Under the first and second methods of section 42(b)(1) of the Texas Probate Code, K~ is entitled to inherit property from the number holder if a court has determined she is the child of the number holder. See Tex. Prob. Code Ann. § 42(b)(1). Here, the Chancery Court of Tishomingo County, Mississippi has issued a judgment finding that the number holder is the legal, biological father of K~, based on the DNA test results. Texas courts accord full faith and credit to judgments, decrees, or orders issued in another state (foreign judgments). Tex. Civ. Prac. & Rem. Code Ann. § 35.001 ("'foreign judgment' means a judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in [Texas]"). In this case, the Chancery Clerk of Tishomingo County, Mississippi certified that the judgment establishing paternity between K~ and the number holder was a true and correct copy of the judgment of record. "In the absence of pleading and proof of the law of a sister state, it is presumed that the law of the state where the judgment was rendered is identical to the law of Texas." Stine v. Koga, 790 S.W.2d 412, 414 (Tex. App. - Beaumont 1990, writ dism'd by agr.). Thus, the Mississippi court judgment, adjudicating K~ to be the number holder's legal, biological child, establishes the parent-child relationship and meets the requirements for intestate succession under Texas law.

In conclusion, K~ has established that she is entitled to inherit property from the number holder under Texas law. As such, she is entitled to apply for benefits on the number holder's account.

Tina M. Waddell

Regional Chief Counsel

By: _______________

Ruben Montemayor

Assistant Regional Counsel

In Texas, DNA testing which satisfies the requirements of the Texas Family Code and shows a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is the claimant's biological father is sufficient to establish a parent child relationship. We believe that a Texas court would find that the claimant is the number holder's child under chapter 160 of the Texas Family Code based on the DNA results.

Even if the court would not come to this conclusion, the DNA test results combined with the mother's statement that the number holder was the father, would qualify as clear and convincing evidence that the number holder is the biological father.

Since acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas; the relationship is established effective December 28, 2005, the date of the DNA test.

You have asked us to provide a legal opinion regarding the significance of a notarized deoxyribonucleic acid (DNA) test report. Specifically, you have requested our opinion regarding whether T~ (T~) is entitled to a retroactive award of child's benefits on the account of Barnard (the disabled number holder). Our opinion is that the available evidence is sufficient under Texas law to establish that T~ is the number holder's child. We also believe that acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas. Accordingly, we believe that T~ is not entitled to a retroactive award of child's benefits on the number holder's account. Instead, he is entitled to benefits as of December 28, 2005, the date of the DNA test report.

The number holder was born on August. In August 2001, he became entitled to Social Security disability benefits. According to the information that we received, the number holder did not list T~ on his application for disability insurance benefits. At all times relevant to this legal opinion, the number holder had his permanent home in Texas.

J~ gave birth to T~ on March. She and the number holder reportedly were not married when T~ was conceived or born. The information that we received indicates that T~'s birth certificate does not identify a father.

In May 2006, J~ filed an application for child's benefits on behalf of T~ on the number holder's account. She supported this application with a notarized DNA test report dated December 28, 2005. This report, which involves DNA samples from the number holder, J~, and T~, shows a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is T~'s biological father.

To be entitled to child's benefits on the account of an insured number holder, a child must: (1) be the number holder's child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a) (1)-(5). Here, J~ applied for benefits on behalf of T~, who is unmarried and under the age of 18. The Agency will consider T~ to be dependent upon the number holder if he is the number holder's child. See 20 C.F.R. § 404.361(a).

To show that he is a number holder's child, a claimant must prove one of the following: (1) he is the number holder's natural child, and the number holder and the claimant's other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (2) he is the number holder's natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant's parent, or a court has ordered the number holder to contribute to the claimant's support because the claimant is the number holder's child; (3) the number holder is the claimant's natural parent and was either living with the claimant or contributing to his support at the time the claimant applied for benefits; or (4) the claimant could inherit property through intestate succession as the number holder's child. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Here, according to the information that we received,T~ has not proven the first three things mentioned above. First, the number holder and J~ never participated in a marriage ceremony. Second, the number holder never acknowledged in writing that T~ was his natural child, no court ever decreed him to be T~'s parent, and no court ever ordered him to contribute to T~'s support. Third, the number holder was neither living with T~ nor contributing to his support when J~ applied for benefits on T~'s behalf. Consequently, to prove that he is eligible for child's benefits on the number holder's account, T~ must show that he could inherit property through intestate succession as the number holder's child. Texas law controls because the number holder had his permanent home in Texas when J~ applied for benefits on T's behalf. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

The Texas Probate Code specifies five methods for a child to show that he has a right to inherit property from his purported biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) the purported father adopted him; (3) the purported father executed an acknowledgment of paternity; (4) a court found him to be the purported father's child under chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was his biological father. See id.

The first, second, and third methods are not relevant in this case under the facts that you have presented. The fourth and fifth methods are, however, relevant. Thus, to establish that he has a right to inherit property from the number holder, T~ must do one of the remaining two things: (1) show that a Texas court would find him to be the number holder's child under chapter 160 of the Texas Family Code; or (2) provide clear and convincing evidence that the number holder was his biological father.

A Texas court will consider the results of genetic testing when adjudicating the paternity of a child under chapter 160 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 160.505, 160.621, 160.631 (Vernon 2007). A man is rebuttably identified as the father of a child if genetic testing reveals a 99% probability of paternity and a combined paternity index of at least 100 to 1. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2007). Only the results of genetic testing may rebut the results of other genetic testing. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631 (Vernon 2007).

Under the Texas Family Code, genetic testing must satisfy certain requirements. Tex. Fam. Code Ann. § 160.503 (Vernon 2007). For example, the testing must take place in a laboratory that has received accreditation from the American Association of Blood Banks (AABB) or another satisfactory accrediting body. See Tex. Fam. Code Ann. § 160.503(a) (Vernon 2007). A laboratory designee must sign the test report. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2007).

Here, the DNA testing took place at the Laboratory Corporation of America, an AABB-accredited facility. Cynthia J. T~, Ph.D., the laboratory's designee, signed the test report before a notary public and verified the interpretation of the results. Thus, the DNA testing satisfied the requirements of the Texas Family Code. As indicated above, this testing revealed a combined paternity index of 1,962,768 to 1 and a 99.99% probability that the number holder is T~'s biological father. No one presented further data to rebut these results. Consequently, we believe that a Texas court would find that T~ is the number holder's child under chapter 160 of the Texas Family Code.

Even if a Texas court would not rely solely on the DNA test results to find that the number holder was T~'s father, T~ could still show that he may inherit property from the number holder. He could do so by providing clear and convincing evidence that he is the number holder's biological child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). The Texas Family Code defines "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (Vernon 2007). A Texas court will consider DNA test results when deciding whether the evidence in a particular case is clear and convincing. See Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-580 (S.D. Tex. 1991).

As suggested above, the evidence in this case includes the following: (1) J~'s claim that T~ is the number holder's child; and (2) a DNA test report that shows a 99.99% probability that the number holder is T~'s biological father. We believe that a Texas court would view this as clear and convincing evidence and find that T~ is the number holder's child. As such, T~ may inherit property from the number holder under Texas intestacy law, and he is entitled to Social Security benefits on the number holder's account.

With respect to the first possible month of entitlement to benefits, Agency policy provides that acts that legitimate a child generally operate retroactively to the birth of the child. Social Security Ruling 85-17. Acts that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. The provision of Texas law that allows an illegitimate child to inherit property from his father does not legitimate the child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Instead, it merely confers inheritance rights. See id. In this case, the act that conferred inheritance rights to T~ was the DNA test report of December 28, 2005.

The child of a deceased number holder becomes entitled to benefits in the first month covered by his application in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1). As indicated above, these requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, T~ met all requirements for entitlement on December 28, 2005, the date of the DNA test report. We therefore conclude that he became entitled to benefits as of that date. Because T~ did not meet all requirements for entitlement until December 28, 2005, and because actions that confer inheritance rights operate only from the date of their occurrence, he is not entitled to a retroactive award of benefits on the number holder's account.

Tina M. Waddell

Regional Chief Counsel

By: _______________

Eric D. Poole

Assistant Regional Counsel

Under Texas law, a birth certificate for a child born 310 days after the number holder's death, listing the number holder's name as the claimant's father, does not constitute clear and convincing evidence to support the claim that the insured is the child's biological father

You asked us to provide a legal opinion regarding whether a child born 310 days after the death of the purported father is a presumed legitimate child under Texas law. ^[79] After reviewing the facts and relevant law, our opinion is that the parent-child relationship has not been established between the number holder and the child under Texas law. As a result, the child is not entitled to receive survivor's benefits on the number holder's Social Security record.

As we understand the facts, S~, the number holder, was born on January. On October X, 1985, the number holder married A~. On December, A~ gave birth to S2~. The number holder and A~ remained married until November 23, 2003, when the number holder died while living in Texas. In March 2004, A~ filed an application for Social Security survivor benefits for herself and child S2~, on the number holder's Social Security record. On September XX, 2004, A~ gave birth to T~. The birth certificate lists the number holder as T~'s father. In April 2005, A~ filed a survivor claim for T~ on the number holder's Social Security record. In March 2004, at the time A~ filed her application for Social Security survivor benefits, she did not indicate that she was expecting another child. T~ was born 310 days after the number holder's death. The Social Security Administration (Agency) asked A~ to submit statements or medical documentation regarding whether her pregnancy with T~ was normal. A~ did not submit additional information to support her representation that T~ is the number holder's child.

A child may be eligible for Social Security survivor benefits if he or she is the child of an individual who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2006). To determine whether an applicant is the child of a deceased wage earner for the purposes of the Social Security Act (the Act), the Commissioner will apply the intestacy laws of the state in which the wage earner had his permanent home when he died. ^[80] See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). An applicant who would have the same status relative to taking intestate personal property as the deceased individual's child, according to such state law, shall be deemed a child of the insured individual for Social Security purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, the applicant's eligibility for Social Security benefits depends on whether the applicant could inherit property through intestate succession as the child of the deceased wage earner.

Here, Texas law controls because the number holder had his permanent home in Texas when he died. The Texas Probate Code (Probate Code) provides two methods to establish paternity for heirship purposes, "presumed paternity and paternity found by clear and convincing evidence in the probate court." See In Re Estate of C~, 993 S.W.2d 311, 318 (Tex. App. - San Antonio, 1999, no writ). Under the presumed paternity method, the Probate Code states that a child is the child of his biological father if the father-child relationship is established under the Texas Family Code (Family Code). See Tex. Prob. Code Ann. § 42(b) (Vernon 2006). Under the Family Code, an effective acknowledgment of paternity by the man establishes the father-child relationship between a man and a child, unless the acknowledgment has been rescinded or successfully challenged; by the man's adoption of the child; by an adjudication of the man's paternity; by the man's consenting to assisted reproduction by his wife, which resulted in the birth of the child; or by an "unrebutted presumption" of the man's paternity of the child. See Tex. Fam. Code Ann. § 160.201(b) (Vernon 2006).

In this case, T~ was born 310 days after the number holder's death. As a result, the number holder could not possibly have acknowledged paternity or adopted T~ prior to his death. Further, no evidence shows that a court has established the parent-child relationship between the number holder and T~ or that T~ was born as a result of assisted reproduction. Thus, under the Family Code, only an "unrebutted presumption" can establish the father-child relationship between the number holder and T~ , showing that the number holder is T~ 's father. See Tex. Fam. Code Ann. § 160.201(b).

The Family Code provides the following methods to establish a presumption of paternity:

(a) a man is presumed to be the father of a child if:

(1) he is married to the mother of the child and the child is born during the marriage;

(2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with the bureau of vital statistics;

(B) he voluntarily names himself as the child's father on the child's birth certificate; or

(C) he promised in a record to support the child as his own; or

(5) during the first two years of the child's life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

See Tex. Fam. Code Ann. § 160.204(a).

Here, the marriage between the number holder and A~ terminated by death, and T~ was born 310 days after the number holder's death. As a result, the Family Code does not presume that the number holder is T~ 's father and does not establish the father-child relationship between the deceased number holder and T~ .

Under the clear and convincing evidence method, the Probate Code states that a person, not presumed to be the biological child of a decedent, may petition the probate court for a determination of the right of inheritance. See Tex. Prob. Code Ann. § 42(b)(1). If the probate court finds by clear and convincing evidence that the purported father was the biological father of the child, the court treats the child as any other child of the decedent for the purpose of inheritance. See id. Texas courts have stated that the "clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved." See villery v. Solomon, 16 S.W.3d 106, 107 (Tex. App. - Houston (1st Dist.), 2000, no writ) (citing In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980)). ^[81]

Here, the only evidence A~ submitted to the Agency supporting the parent-child relationship between the number holder and T~ is a birth certificate, which lists the number holder as T~'s father. As noted above, T~ was born 310 days after the number holder's death. Texas law does not presume that the number holder is the father based on this evidence alone. The Agency has asked A~ to submit additional evidence supporting her representation that T~ is the number holder's biological child, but A~ has not complied with the Agency's request.

Texas law provides a method to develop evidence supporting the parent-child relationship between a deceased person and a child. Under Texas law, a court may order genetic testing to determine parentage of an individual. See Tex. Fam. Code Ann. § 160.501. The court may order genetic testing even when all individuals are not available. See Tex. Fam. Code Ann. § 160.508. Genetic testing results that show at least a 99 percent probability of paternity create a rebuttable presumption of paternity. See Tex. Fam. Code Ann. § 160.505(a), (b). Here, Ms. B~ did not present genetic testing results or any other evidence to the Agency to establish the parent-child relationship between T~ and the number holder. In our opinion, a birth certificate created 310 days after the number holder's death, listing the number holder's name as T~'s father, does not constitute clear and convincing evidence to support A~'s representation that the number holder is T~'s biological father. Thus, the Agency cannot apply section 42(b) of the Texas Probate Code to establish inheritance rights between A~ and the number holder.

In conclusion, our opinion is that clear and convincing evidence does not support A~'s representation that the number holder is meena's father. A~ has not otherwise established the parent-child relationship between the number holder and meena under Texas law. As a result, Texas intestacy laws do not entitle T~ to inherit property from the number holder. Therefore, T~ is not entitled to receive survivor's benefits on the number holder's Social Security record.

Tina M. Waddell

Regional Chief Counsel

By: _______________

Ruben Montemayor

Assistant Regional Counsel

 

In Texas, in a case where the number holder has died and cannot provide a specimen for genetic testing, the court will consider the results of genetic testing of his parents showing a 99.99 percent probability that they are the child's grandparents.

The parent-child relationship is established as of the date of the DNA testing.

You asked us to provide a legal opinion regarding the significance of a notarized grandparentage deoxyribonucleic acid (DNA) test report. Specifically, you asked whether such a report is sufficient under Texas law to establish that Phoenix (Phoenix) is the child of J~ (the deceased number holder). You also requested our opinion regarding whether acts that grant inheritance rights to a child, but do not legitimate the child, have retroactive effect in Texas. Our opinion is that the available evidence is sufficient under Texas law to establish that Phoenix is the number holder's child. We also believe that acts that grant inheritance rights to a child, but do not legitimate the child, have no retroactive effect in Texas. Accordingly, we believe that Phoenix is entitled to benefits as of December 22, 2005, the date of the grandparentage DNA test report.

The number holder was born on January, to D~, formerly known as D~ M~) and J~ M~ (Mr. M~). According to the information we received, the number holder was the only child of D~ and J~. The number holder died in an automobile accident on August X, 2004. His permanent home was in Texas.

P~ was born on March. His birth certificate identifies E~ as his mother. It does not identify his father. E~ and the number holder were never married.

In March 2005, E~ filed an application for child's benefits on behalf of P~ on the number holder's account. She claimed that the number holder was P~'s father, but that the number holder never knew this. E~ reportedly did not learn that she was pregnant until shortly after the number holder's death. She provided statements and letters from several people (including her mother and sister and the number holder's mother and brother) to support her claim that the number holder was P~'s father. Nonetheless, because E~ failed to provide clear and convincing evidence that the number holder was P~'s father, the Agency denied the March 2005 application for child's benefits.

In January 2006, E~ filed a second application for child's benefits on behalf of P~ on the number holder's account. She supported this application with a notarized grandparentage DNA test report dated December 22, 2005. This report shows that the number holder's biological parents, D~ and J~, cannot be excluded as P~'s biological grandparents. Indeed, the report shows a 99.99% probability that D~a and J~ are P~'s biological grandparents.

To be entitled to child's benefits on the account of an insured number holder, a child must:

(1) be the number holder's child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, D~ applied for benefits on behalf of P~, who is unmarried and under the age of 18. The Agency will consider P~ to be dependent upon the number holder if he is the number holder's child. See 20 C.F.R. § 404.361(a).

To determine whether an applicant is the child of a deceased number holder, the Commissioner will apply the intestacy laws of the state in which the number holder had his permanent home. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, P~'s eligibility for child's benefits depends upon whether he could inherit property through intestate succession as the number holder's child. See id. Texas law controls because the number holder had his permanent home in Texas when he died.

Texas law provides five ways for a child to show that he has a right to inherit property from his purported biological father. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). Specifically, the child must show one of the following: (1) he was born under the circumstances described in section 160.201 of the Texas Family Code; (2) the purported father adopted him; (3) the purported father executed an acknowledgment of paternity; (4) a court found him to be the purported father's child under chapter 160 of the Texas Family Code; or (5) clear and convincing evidence establishes that the purported father was his biological father. See id.

Here, P~ was not born under the circumstances described in section 160.201 of the Texas Family Code. The number holder neither adopted P~ nor executed an acknowledgment of paternity. No court found P~ to be the number holder's child, but if state law requires a court determination of paternity, the Commissioner will not require the child to obtain such a determination. 20 C.F.R. § 405.355(b)(2). Instead, the Commissioner will apply the law that the state court would apply to determine the child's paternity. See id. Thus, to establish that he has a right to inherit property from the number holder, P~ must do one of the remaining two things: (1) show that a Texas court would find him to be the number holder's child under chapter 160 of the Texas Family Code; or (2) provide clear and convincing evidence that the number holder was his biological father.

A Texas court will consider the results of genetic testing when adjudicating the paternity of a child under chapter 160 of the Texas Family Code. See Tex. Fam. Code Ann. § 160.631 (Vernon 2007). A man is rebuttably identified as the father of a child if genetic testing reveals a 99% probability of paternity. See Tex. Fam. Code Ann. § 160.505(a) (Vernon 2007). When the man has died and cannot provide a specimen for genetic testing, the court may consider the results of genetic testing of the man's parents. See Tex. Fam. Code Ann. § 160.508(a)(1) (Vernon 2007); see also Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 579-580 (S.D. Tex. 1991) (after death of putative father, Texas court may draw inferences from grandparentage DNA testing to determine paternity). Only the results of genetic testing may rebut the results of other genetic testing. See Tex. Fam. Code Ann. §§ 160.505(b), 160.631 (Vernon 2007).

Under the Texas Family Code, genetic testing must satisfy certain requirements. Tex. Fam. Code Ann. § 160.503 (Vernon 2007). For example, the testing must take place in a laboratory that has received accreditation from the American Association of Blood Banks (AABB) or another satisfactory accrediting body. See Tex. Fam. Code Ann. § 160.503(a) (Vernon 2007). A laboratory designee must sign the test report. See Tex. Fam. Code Ann. § 160.504(a) (Vernon 2007).

According to the information we received, the grandparentage DNA testing in this case took place at Genetica DNA Laboratories, Inc., an AABB-accredited facility. M~, Ph.D., the laboratory's designee, signed the test report before a notary public and verified the interpretation of the results. Thus, the grandparentage DNA testing satisfied the requirements of the Texas Family Code. No one presented further DNA testing to rebut the results of the grandparentage DNA testing. We therefore believe that a Texas court would view the grandparentage DNA test report as convincing evidence that the number holder was P~'s father.

Even if a Texas court would not rely solely on the grandparentage DNA test report to find that the number holder was P~'s father, P~ could still show that he may inherit property from the number holder. He could do so by providing clear and convincing evidence that he is the number holder's biological child. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2007). The Texas Family Code defines "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (Vernon 2007). A Texas court will consider grandparentage DNA test results when deciding whether the evidence in a particular case is clear and convincing. See Tipps, 768 F.Supp. at 479-480.

As mentioned above, the evidence in this case includes the following: (1) a divorce petition and a letter that indicate that the number holder was the only child born to D~ and J~; (2) a DNA test report that shows a 99.99% probability that D~ and J~ are P~'s biological grandparents; (3) statements from E~ that identify the number holder as P~'s father; and (4) a statement from E~'s mother and letters from E~'s sister, J~'s brother, and D~, all of which support E~'s claim that P~ is the number holder's child. We believe that a Texas court would view all of this as clear and convincing evidence and find that P~ is the number holder's child. As such, P~ may inherit property from the number holder under Texas intestacy law, and he is entitled to Social Security benefits on the number holder's account.

With respect to the first possible month of entitlement to benefits, Agency policy provides that acts that legitimate a child generally operate retroactively to the birth of the child. Social Security Ruling 85-17. Acts that merely confer inheritance rights, on the other hand, operate prospectively from the date of the act. Id. n this case, the act that conferred inheritance rights to P~ was the grandparentage DNA test report of December 22, 2005.

The child of a deceased number holder becomes entitled to benefits in the first month covered by his application in which he meets all requirements for entitlement. 20 C.F.R. § 404.352(a)(1). As indicated above, these requirements include proof that the child: (1) is the number holder's child; (2) is dependent upon the number holder; (3) has applied for benefits; (4) is unmarried; and (5) is under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). Here, P~ met all requirements for entitlement on December 22, 2005, the date of the grandparentage DNA test report. We therefore conclude that he became entitled to benefits as of that date. Because P~ did not meet all requirements for entitlement until December 22, 2005, and because actions that confer inheritance rights operate only from the date of their occurrence, he is not entitled to a retroactive award of benefits on the number holder's account.

Tina M. Waddell

Regional Chief Counsel

By: _______________

Eric D. Poole

Assistant Regional Counsel

Under Texas law, a Full Sibling Screening Report which does not show the results in a percentage of probability or include combined paternity index information is not sufficient to establish the child's relationship to the number holder.

You have requested an opinion regarding whether a sibling screening report is sufficient to establish T~'s status as a child of the wage earner under Texas state law. In our opinion, under Texas law, the sibling screening report is not sufficient to establish that T~ is the wage earner's child.

As we understand the facts, the wage earner resides in Texas and receives Title II retirement benefits based on a May 2002 application. On his application for benefits, the wage earner listed two children, T2~ (born in July ), whose entitlement was based on the wage earner's acknowledgement of T2~ as his child (as was later proven by a 1991 DNA test performed as part of child support documentation), and S~ (born in March 1985), the wage earner's natural, legitimate child.

T~ was born in Texas on February. In July 2004, S2~, who alleges, but has not proven, that she is T~'s legal guardian, filed a claim for T~'. S2~ reported that T~'s mother lives with, but is not married to, the wage earner. She also stated that T~'s mother told her that the wage earner is T~'s father. T~'s birth certificate shows no father, and the wage earner has not acknowledged T~ or provided any support for her. The claim was denied because no evidence of relationship was provided.

In September 2004, S2~ filed a request for reconsideration of the denial decision. She provided a Sibling Screening Report from the Genquest DNA Analysis Laboratory as evidence of T~'s relationship to the wage earner. Testing was performed on T~, T2~, and Mary, but not on the wage earner. S2~ stated that the wage earner is unwilling to provide a sample for genetic testing, although this claim has not been corroborated. Testing of T3~, T2~, and T~ resulted in a conclusion that T~ and T2~ are 110.7 times more likely to be siblings as compared to an untested, unrelated person of the African-American population and that they are likely to be biologically related as full siblings (sharing both a common mother and father). The report was signed by E~, Ph.D., on September 16, 2004.

The wage earner was married to V~ from 1957 to 1972 and to T3~ from 1982 to 2000. Those marriages ended in divorce. In November 2003, M~, T~'s mother, filed an application for her daughter, N~, whose natural father is not the wage earner. The application was for benefits as a stepchild on the wage earner's record. M~ alleged that she and the wage earner entered into a common law marriage in July 2003 and, therefore, that N~ is the wage earner's stepchild. The wage earner denied the marriage and refused to cooperate in completing forms to establish a common law marriage. N~'s application was denied, as a common law marriage and resulting stepchild relationship could not be established. On the application for N~a, M~ did not list T~a as the wage earner's child.

The Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured individual was domiciled at the time of his application for benefits. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355. The wage earner is domiciled in Texas. Accordingly, Texas law controls.

The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2004). These methods are: 1) the child is born under circumstances described by Section 160.201 of the Family Code (which cites to Section 160.204 - child born during a marriage or within 300 days after it, attempted or invalid marriage or father continuously lived with child the first two years and represented to others that the child was his own); 2) the child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; 3) the child was adopted by the father; 4) the father executed an acknowledgement or like statement of paternity as provided by Subchapter D., Chapter 160 of the Family Code; or 5) the child establishes by clear and convincing evidence that the purported father was the biological father of the child. Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204.

In the instant case, no court decree has been obtained. However, the Social Security Administration will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before a worker's death. Paternity will be decided using the standard of proof that the state court would use. 20 C.F.R. ' 404.355(b)(2) (2004). The paternity of a child may be established during the lifetime of the father by a preponderance of the evidence. Tex. Fam. Code § 105.005. "Preponderance of the evidence" means the greater weight and degree of credible testimony. Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App.-Dallas 1992, writ denied).

In 2001, Texas became the first state to adopt the Uniform Parentage Act. Tex. Fam. Code Ann. Chapter 160 (Uniform Parentage Act) (Acts 2001, 77th Leg., ch. 821 (effective June 14, 2001)). The Uniform Parentage Act governs every determination of parentage in Texas. Tex. Fam. Code Ann. § 160.103(a). The Uniform Parentage Act provides for, and focuses on, genetic testing. A report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the report. Tex. Fam. Code Ann. § 160.621. A court may order testing of an alleged father. Tex. Fam. Code Ann. § 160.502. A court may order genetic testing of relatives, including brothers and sisters, when a specimen from an alleged father is not available. Tex. Fam. Code Ann. § 160.508.

The results of genetic tests may be used to identify the father of a child. Tex. Fam. Code Ann. §§ 160.505, 160.631. A man is rebuttably identified as the father of a child if testing reveals at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. Tex. Fam. Code Ann. § 160.505(a). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631. The Uniform Paternity Act provides that "[i]f the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity." Tex. Fam. Code Ann. § 160.631(e).

Here, the wage earner has allegedly refused to provide a sample for genetic testing. There is, however, no evidence of this refusal other than S2~'s statement, nor is there evidence as to whether a court ordered him to submit to testing and, if so, whether he refused to comply. We also note that the wage earner provided a genetic sample in 1991, to establish his parentage of T~. If the wage earner's current cooperation cannot be secured, it may be possible to obtain the 1992 evidence, for comparison with T~'s DNA.

DNA testing in 2001 established a 99.92 percent probability that the wage earner is T2~'s father; thus, a finding that T~ is T2~'s full sibling would establish that the wage earner is also T~'s father. The DNA report provided with your request for our opinion shows that T3~, T2~, and T~ were tested on September 8, 2004. The report shows that T2~ and T~ are 110.7 times more likely to be siblings as compared to an untested, unrelated person of the African-American population. The report also states that T2~ and T~ are "likely to be biologically related as full siblings (sharing both a common mother and father)." It is not clear whether the statement that they are "likely" related as full siblings is tied to the previous sentence that they are 110.7 times more likely to be siblings as compared to untested persons. Accordingly, we requested clarification of the statement, which you provided (see copy of email message attached). The laboratory contact reported that sibling screening reports do not produce numbers in percentage terms. She stated that the statement that they are "110.7 times more likely to be siblings" applies to full siblingship. However, the contact was the laboratory's office manager, and the statement was not in writing.

As stated above, a man is rebuttably identified as the father of a child if testing reveals at least a 99 percent probability of paternity and a combined paternity index of 100 to 1. Tex. Fam. Code Ann. § 160.505(a). The test report provided in this case is not stated in percentage terms. It is possible that "110.7 times more likely" correlates with a percentage of over 99 percent, based on 110.7 times to 1 representing 110.7 out of 111.7. The Texas statute, however, specifies a requirement for a percentage probability, and we believe that it would not be appropriate to make such a mathematical assumption. In addition, the report contains no information as to a combined paternity index, and the statue specifically requires a combined paternity index of at least 100 to 1. Accordingly, we do not believe that the screening report alone is sufficient to establish that T~ is the wage earner's child.

Beyond the screening report, which is ambiguous in its findings, there is very little evidence regarding T~'s relationship to the wage earner. S2~, who alleges but has not proven, that she is T~'s guardian, stated that T3~ told her that the wage earner is T~'s father. M~'s statement has not been obtained to verify S~'s report. There is also no evidence of attempted contact with the wage earner to determine whether he denies or acknowledges T~ as his child. Also, T~ was born in 1988, while the wage earner was married to his second wife, and there is no documentation as to M~'s relationship with the wage earner during that time. In addition, both the wage earner and M~ have filed previous applications referencing children of the wage earner, but not including T~. In essence, beyond than the screening report, only S2~, an unrelated person, has alleged that T~ is the wage earner's child.

As the screening report does not satisfy the statutory standards, and the other evidence is scant, we do not believe that a Texas court would find that the preponderance of the evidence shows that T~ is the wage earner's child. We recommend that the field office attempt to corroborate S~'s claim to be T~'s guardian to determine if she is a proper applicant on T~'s behalf and if her various statements are credible. We further recommend that the field office attempt to contact T~'s mother and the wage earner, to determine whether either or both of them corroborate S~'s statements as to T~'s parentage. We also suggest that the field office confirm that the wage earner refused to provide a genetic sample and attempt to obtain a comparison of the wage earner's 1991 DNA sample with T~'s DNA sample. Finally, we recommend that the field office obtain written clarification from the laboratory as to the findings from the sibling screening report, to ascertain whether the laboratory's findings can accurately be stated in terms that satisfy the statutory standards.

Tina M. Waddell

Regional Chief Counsel

By: ___________________________

Brenda Liess

Assistant Regional Counsel

Under Texas law, DNA testing of the claimant and the deceased number holder's parents showing a 99.99% probability that the deceased's parents are the claimant's grandparents will be sufficient to rebuttably establish a parent-child relationship provided that development ruling out possible parentage by any sibling of the number holder is obtained.

The relationship is effective with the date of the DNA test.

You have requested an opinion regarding whether DNA testing of the wage earner's parents is sufficient to establish status as a child of the wage earner under Texas state law. You also inquired as to the first possible month of entitlement. In our opinion, contingent upon the field office obtaining additional evidence to confirm that the individuals tested were the wage earner's parents and that the wage earner had no brothers who could potentially be Selina's father, the grandparentage screening report is sufficient to entitle S3~ as the wage earner's child. She can be entitled as of February 18, 2005.

As we understand the facts, S3~ was born in California, on March. S3~'s mother, Deshaun, was not married to the wage earner. Selina's birth certificate shows Samuel , a person with whom D~ had a relationship when S3~ was born, as S3~'s father.

The wage earner received Title II disability benefits from October 1994 until his death on March X, 1995, in Texas. On his application for benefits, the wage earner listed only one child, B~. The wage earner's mother, however, informed the field office that the wage earner mentioned a possible daughter in California. His father wrote a letter to D~ in which he states that the wage earner told him about S3~.

D~ filed an application for child's benefits on behalf of S3~ on February 22, 2005. As evidence of S3~'s relationship to the wage earner, D~ submitted a February 18, 2005, DNA test report. The report is from Genetica DNA Laboratories, Inc., and is signed by M~, Ph.D., Assistant Laboratory Director. Testing was performed on D~, S3~, and the assumed parents of the wage earner. Dr. Z~ offered the following interpretation of the test results:

The alleged paternal grandparents, S4~ and B2~, cannot be excluded as the biological paternal grandparents of the child, S3~. Based on testing results obtained from analyses of 15 different DNA probes, the probability of grandparentage is 99.99%. This probability of grandparentage is calculated by comparing to an untested, unrelated couple of the North American Black population (assumes prior probability equals .50).

Dr. Z~'s written report was sworn to and subscribed before a notary public.

As you know, the Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355. Thus, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled. Under the Commissioner's regulations, a natural child of the insured is considered to be dependent upon the insured when there is no issue of adoption by another individual. 20 C.F.R. § 404.361.

In this case, Texas law controls because the wage earner was domiciled in Texas at the time of his death. The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2004). These methods are: 1) The child is born under circumstances described by Section 160.201 of the Family Code (which cited to Section 160.204 - child born during a marriage or within 300 days after it, attempted or invalid marriage or father continuously lived with child the first two years and represented to others that the child was his own); 2) The child is adjudicated to be the child of the father by court decree as provided by Chapter 160 of the Family Code; 3) The child was adopted by the father; 4) The father executed an acknowledgement or like statement of paternity as provided by Subchapter D., Chapter 160 of the Family Code; or 5) The child establishes by clear and convincing evidence that the purported father was the biological father of the child. Tex. Prob. Code Ann. § 42(b)(1); Tex. Fam. Code Ann. §§ 160.201, 160.204. The first four methods do not apply as there has been no adjudication, adoption, or acknowledgement, and the circumstances surrounding the presumption of paternity in Section 160.204 of the Family Code do not exist in this case. Thus, only the fifth method, clear and convincing evidence, would remain.

However, one method is to obtain a court decree as provided in Chapter 160 (Determination of Parentage) of the Texas Family Code. The Texas Family Code provides that the effect of an order declaring that an alleged parent is the biological parent of the child is to confirm or create the parent-child relationship between the parent and child for all purposes. Tex. Fam. Code Ann. § 160.203, superseding § 160.006(b), by Act of June 14, 2001, Tex. Sess. Law. Serv. 821 (West 2004). In the instant case, no court decree has been obtained. However, the Social Security Administration (SSA) need not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that an action to establish paternity must have been started or completed before the worker's death. If applicable state law requires a court determination of paternity, SSA will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2).

In 2001, Texas became the first state to adopt the Uniform Parentage Act. Tex. Fam. Code Ann. Chapter 160 (Uniform Parentage Act) (Acts 2001, 77th Leg., ch. 821 (effective June 14, 2001)). The Uniform Parentage Act governs every determination of parentage in Texas. Tex. Fam. Code Ann. § 160.103(a). The Uniform Parentage Act provides for, and focuses on, genetic testing. A report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the report. Tex. Fam. Code Ann. § 160.621. The Uniform Parentage Act expressly provides that a court may order genetic testing of relatives, including parents, when an alleged father is not available. Tex. Fam. Code Ann. § 160.508 (genetic testing when all individuals not available). Here, the wage earner is deceased and is, therefore, not available for testing.

The results of genetic tests may be used to identify the father of a child. Tex. Fam. Code Ann. §§ 160.505, 160.631. A man is rebuttably identified as the father of a child if testing reveals at least a 99 percent probability of paternity and a combined paternity index of 100 to 1. Tex. Fam. Code Ann. § 160.505(a). The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631. The Uniform Paternity Act provides that "If the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity." Tex. Fam. Code Ann. § 160.631(e).

In this case, genetic testing of the deceased wage earner's parents resulted in a conclusion that the wage earner's parents could not be excluded as being S3~'s grandparents. The probability of grandparentage is 99.99%. The test report is based on the assumption that the individuals tested were in fact the parents of the wage earner. The case file does not contain any evidence suggesting that the individuals tested were not the parents of the wage earner, or that there were any brothers of the wage earner who could have been S3~'s father. The field office should obtain evidence, such as a birth certificate, an affidavit or letter from the mother or any brothers as to the relationship to the wage earner. Absent evidence raising doubt in these areas, we believe that the test results suffice to establish that S3~ is the wage earner's child.

With respect to the first month of entitlement, SSA policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. See Social Security Ruling 85-17. Although Texas law allows an illegitimate child to inherit from the father once paternity is established, the law does not legitimate the child but, merely establishes the parent-child relationship, pursuant to which the child receives inheritance rights. See Tex. Prob. Code Ann. § 42(b)(1) (Vernon 2004).

Social Security regulations provide that a claimant who files an application for benefits may receive benefits no earlier than the first month she meets all the requirements. 20 C.F.R. § 404.620(a)(1). We believe that S3~ would be considered as having met the requirements for entitlement when she established inheritance rights based on the DNA test results dated February 18, 2005.

Tina M. Waddell

Regional Chief Counsel

By: ___________________________

Brenda Liess

Assistant Regional Counsel

A DNA siblingship test report showing a 97.6 percent probability of half-siblingship between the child claimant and the NH's alleged son does not establish by clear and convincing evidence that the NH is the child's biological father under Texas law. The DNA test shows only a 97.6 percent of probability of siblingship, and a 41 to 1 chance that the child and the NH's son share the same biological father, not who the father might be. The DNA test results are below the statutory standard under Texas law, which is 99 percent of probability. Moreover, the record does not contain objective evidence that would independently support the assertion of paternity.

You have requested an opinion regarding whether a DNA Siblingship Test Report showing a 97.6 percent probability of half-siblingship can constitute clear and convincing evidence under Texas state law of the paternity of J~, number holder (NH), for S~, III (the child). In our opinion, the siblingship test does not establish by clear and convincing evidence that J~ is the child's biological father. Therefore, the child does not meet the requirement for entitlement to benefits on the NH's record.

You also asked whether a Texas DNA statute that creates a rebuttable presumption in favor of paternity is applicable in this instance of siblingship DNA testing. In fact, the rebuttable presumption doctrine created under the Texas DNA statute does not apply to the facts in this case.

As we understand the facts, NH received retirement benefits from September 1977 until his death on November XXX, 1992, in Texas. In 1986 and 1987, K~, the child's mother, lived with a boyfriend, S~, in NH's home. K~, claims that while she lived with NH, that she had sexual relations with him. As a result, K~, alleges she became pregnant by NH, and on December XX, 1987, she gave birth to his child. NH was divorced from his wife on November XX, 1978.

The child's birth certificate lists S~ as the father. However, a DNA test dated December 26, 2000, shows that S~ is not the biological father of the child.

In 2001, a son of NH, J2~, took a DNA Siblingship Test. The test report, dated December 29, 2001, showed that there is a 97.6 percent probability that he and the child are brothers, and that there is a 41 to 1 chance that they share the same biological father. J2~'s Texas birth certificate purportedly shows that he was born on October, to D~ and J~.

In relevant part, the DNA test report noted in the interpretation section:

DNA testing was done to determine siblingship of alleged siblings, S~ and J2~. Based on testing results obtained from analyses of 5 different DNA probes, the probability of half-siblingship is 97.6%. The likelihood that they share the same biological father is 41 to 1.

The report was sworn to and subscribed before a notary public.

To determine whether an applicant is the child of an insured individual, the Social Security Act provides that the Commissioner shall apply such law as would be applied to determine the devolution of intestate personal property by the courts of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355 (2003). Thus, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the deceased NH was domiciled. In this case, Texas law controls because the wage earner was domiciled in Texas at the time of his death.

The Social Security Administration (SSA) will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before the worker's death. 20 C.F.R. § 404.355(b)(2). However, SSA will determine a child's paternity by using the same standard of proof that the state court would use. Id. In Texas the courts use the clear and convincing evidence ^[82] standard to determine if a purported father is the biological father of the child. If paternity is established by clear and convincing evidence, the child is treated as any other child of the decedent for purposes of inheritance. Id.

The DNA Siblingship Test Report is evidence that would be considered by a court. Prudential Insurance Co. Of America v. Moorhead, 916 F.2d 261, 264-265 (5th Cir. 1990) (observing that the advent of DNA testing has alleviated many of the serious problems of proof inherent in paternity adjudications). The Texas Family Code provides that if a genetic test shows that an alleged father has at least a 99 percent probability of paternity, the man is rebuttably the father of the child. Tex. Fam. Code Ann. § 160.505(a)(1) (Vernon 2003).

Due to NH's death, testing of NH was not possible. His acknowledged son, J2~, consented to a DNA test to determine if he and the child were biologically related. The test report showed that there was a probability of 97.6 percent that the child and J2~ were half-siblings that share the same father. However, given the State requirement that the parentage test must show at least a 99 percent probability of an alleged father's paternity, the test result does not meet the statutory standard or raise the statutory presumption.

However, inquiry as to paternity may continue even though DNA test results do not meet the statutory standard. In cases where tests fail to exclude the alleged father, courts have the latitude to consider DNA test results in conjunction with other evidence to determine if there is clear and convincing evidence to establish the paternity of a child. Tex. Fam. Code Ann. § 160.631(e) (Vernon 2003); see also In Interest of B.M.N., 570 S.W.2d 493, 501 (Tex.Civ.App. - Texarkana 1978). Typically, the other evidence relied on by Texas courts consists of objective evidence that independently corroborates the biological relationship in question. For example, Texas courts have admitted birth certificates and baptismal records with the deceased listed as the father, prior statements by the alleged father bearing on the relationship with the child, photographs taken over a period of years of the child and father in family settings, affidavits from third parties attesting to statements or events relating to the parent-child relationship, evidence of resemblance of the child to the alleged parent, and evidence of periods of conception and gestation. In the Interest of A.S.L., a Child, 923 S.W.2d 814, 818-819 (Tex.Civ.App. - A~ 1996); In Interest of B.M.N., 570 S.W.2d at 501; see also Tipps v. Metropolitan Life Insurance Co., 768 F.Supp. 577, 579-580 (S.D.Tx. 1991).

In the instant case, the DNA test report shows only a 97.6 percent of probability of siblingship, and a 41 to 1 chance that the child and J2~ share the same biological father, not who the father might be. Given that the DNA test results are below the statutory standard, NH is neither established nor eliminated as the biological father of the child. Additionally, the record does not contain objective evidence that would independently support the assertion that NH is the child's biological father. Given the lack of corroboration of other evidence, a Texas court would not consider the DNA test results alone to constitute clear and convincing evidence.

Therefore, it is our opinion that the child may not receive benefits based on the DNA Siblingship Test Report without further development of the factual record.

Tina M. Waddell

Regional Chief Counsel

By: ___________________________

James A. Garrett

Assistant Regional Counsel

The Texas Uniform Parentage Act expressly provides that a court may order genetic testing of relatives when an alleged father is not available, to make a posthumous determination of whether the purported father was a child's biological father. In this case, testing of the deceased NH's relatives resulted in a conclusion that there is a 99.99% probability of grandparentage, and at least 99.99% of the population was excluded from the possibility of being the biological grandparents of the child. Thus, assuming that SSA is satisfied that no brother of the NH is the father, there is clear and convincing evidence establishing that the child is the NH's child.

You have requested an opinion regarding whether B~ is entitled to child's benefits based on the earnings record of K~ (deceased wage earner). Specifically, the issue is whether DNA testing of the deceased wage earner's siblings would satisfy Texas intestacy law. In our opinion, under Texas law, if the wage earner's brother(s) can be excluded as the possible father, B~ has established that she is entitled to inherit from the wage earner and, therefore, meets the requirements for entitlement to benefits on the wage earner's record. Benefits could be paid starting with the six-month period prior to the filing of the January 27, 1999, application. However, as explained below, this conclusion is premised on there being evidence that is satisfactory to you that no brother of the wage earner is the father.

K~ died on September X, 1990. B~ was born in Texas, on November. B~'s mother, M~, filed a third application for child's benefits on behalf of her daughter on January 27, 1999.

Two prior applications had been denied. An application filed on July 12, 1993, was denied at the initial level on September 4, 1993, and at the reconsideration level on December 8, 1993. A hearing was requested on January 28, 1994. At a hearing on February 7, 1995, the Administrative Law Judge (ALJ) considered a 1994 DNA Paternity Evaluation Laboratory Report, but found that it was not persuasive. The ALJ concluded that the evidence did not establish a parent-child relationship between Brandi H~ and K~, and that the child was not dependent upon the wage earner. The Appeals Council denied the request for review, and the ALJ's May 24, 1995, decision became the final decision of the Commissioner. A second application was filed on May 20, 1996. Reconsideration was requested on October 20, 1996. The request for reconsideration was dismissed on July 8, 1997, because the issues, facts, and individuals were the same as the previous claim. The third application was filed on January 27, 1999. This is the current application.

The current application involves a matter that was previously ruled upon by an ALJ, after a hearing. The Social Security Act provides that, “The findings and decision of the Commissioner of Social Security after a hearings B~ be binding upon all individuals who were parties to such a hearing.” 42 U.S.C. § 405(g). If further review is not requested, a determination or decision generally becomes administratively final and binding. See 20 C.F.R. § 404.987 (2002). The denials of the prior applications are administratively final and cannot be reopened. The denial of the 1993 application cannot be reopened because more than four years have elapsed and there is no issue of fraud or similar fault. See 20 C.F.R. § 404.988(c). The denial of the 1996 application cannot be reopened because over twelve months elapsed and good cause has not been established. See 20 C.F.R. § 404.988(b). The regulations provide that we will not find good cause to reopen based only on a change of legal interpretation or administrative ruling. 20 C.F.R. § 404.989(b).

Apart from the issues of administrative finality and reopening, there is an additional issue as to whether the doctrines of res judicata and collateral estoppel would preclude any further consideration of the issue of paternity with respect to the current application. Although the issues frequently arise at the same time, the regulations governing res judicata and collateral estoppel are distinct from the regulations governing administrative finality and reopening.

The regulations provide that the doctrine of res judicata applies when there has been a previous determination or decision on the same facts and on the same issue or issues, and the previous determination has become final. 20 C.F.R. § 404.957(c)(1). The doctrine of collateral estoppel applies when the same issue has already been decided under a different title of the Act. 20 C.F.R. § 404.950(f). Under SSA policy res judicata may be applied if the same parties, facts, and issues are involved in both the prior and subsequent claims. See 20 C.F.R. § 404.957(c)(1); Social Security Ruling (SSR) 91-5p (1991); Acquiescence Ruling 98-3(6) (1998).

Even if a prior denial of an application for child's benefits cannot be reopened, the doctrine of res judicata does not preclude consideration of a second application for child's benefits if new and material evidence were submitted. Because the facts would not be the same, a child could be entitled to benefits as a decedent's child based on a second application. See SSR 86-16a (1986) (Finality of decision - New and Material Evidence of Paternity- Res Judicata). In the current application, however, no new and material evidence has been presented. The ALJ considered the DNA test results in the May 24, 1995, decision. Nevertheless, neither res judicata nor collateral estoppel precludes consideration of the current application for child's benefits, because the issues are not the same as in the prior decision. The issues are not the same because, as discussed below, there have been significant changes in the regulations and Texas law.

In Kasey v. Sullivan, 3 F.3d 75, 78 (4th Cir. 1993), the Court of Appeals held that, “The ALJ, in the instant case, correctly stated that the doctrine of res judicata-a doctrine distinct from the Secretary's rules of administrative finality and the reopening of claims-was inapplicable to K~'s 1990 claim for benefits in light of the change in the regulations governing claims of mental impairments.”

The Hearings, Appeals and Litigation Law (H~EX) Manual provides:

Effect of a Subsequent Change in Statute, Regulation or Policy Interpretation on Applicability of Res Judicata

The ALJ may not use res judicata as the basis for dismissing an RH [Request for Hearing] based on a current application when there has been a change in a statute, regulation, ruling or legal precedent which was applied in reaching the final determination or decision on the prior application. A new adjudicative standard exists and the issues cannot be considered the same as the issues in the prior case. The ALJ must issue a decision.

B~ I-2-4-40F (Res Judicata). H~EX also notes:

Although a change in the regulations precludes an ALJ from dismissing a request for hearing on the basis of res judicata, it does not change the rules on administrative finality. Payment of the claim would be based on the current application alone, unless the conditions for reopening an earlier claim are met.

B~ I-2-4-40F (Res Judicata).

In summary, neither res judicata nor collateral estoppel can be applied to preclude consideration of the current application for child's benefits. The issues are not the same as the issues under the prior applications, because there have been significant changes in the regulations and, also, Texas state law. See 20 C.F.R § 404.957(c)(1) (res judicata applies when previous decision involves the same issue or issues). As will be outlined below, the regulations related to determining who is an insured's natural child were amended in 1998, and Texas adopted the Uniform Parentage Act in 2001.

With respect to the current application, there is conflicting evidence. B~'s mother and the deceased wage earner never married each other. The deceased wage earner is not listed on B~'s birth certificate. The evidence of record includes two statements that indicate that the wage earner verbally acknowledged that B~ was his daughter. M2~, the child's maternal grandmother, reported in a signed child relationship statement that the wage earner told her that he was B~'s father. J~, the wage earner's brother, also reported that the wage earner acknowledged that he was B~'s father. J~ also stated that the wage earner was the father.

A 1994 Paternity Evaluation Laboratory Report (the lab report) was submitted. The lab report is from GeneScreen Laboratory Director Robert , Ph.D. Testing was performed on the mother, child, and three siblings of the deceased wage earner, but not the deceased wage earner. Testing of these five individuals resulted in a conclusion that there was a 99.99% probability of grandparentage. There was a combined grandparentage index of 15,211. The lab report provided:

The alleged grandparents cannot be excluded as the biological grandparents of the child, B~ . Based on the testing results shown below, the probability of grandparentage is 99.99% as compared to an untested random couple of the North American Black population. (Prior Probability = 0.50). At least 99.99% of couples of the North American Black population are excluded from the possibility of being the biological grandparents of the child.

The lab report noted that the DNA patterns were determined from three siblings of the deceased alleged father. The lab report was sworn to and subscribed before a notary public.

The Social Security Act provides that in determining whether an applicant is the child of an insured individual, the Commissioner’s H~ apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355. Thus, as pertinent, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled. The deceased wage earner was domiciled in Texas. Accordingly, Texas law controls.

Under SSA regulations, SSA will apply the version of state law in effect at the time the final decision on the application for benefits is made. If the child does not qualify under that version of state law, earlier versions will be considered, if applicable. See 20 C.F.R. § 404.355(b)(4). SSA will not apply a state law requirement that a court determination of paternity be obtained or a requirement that paternity be established before the worker's death. Paternity will be decided using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2). This regulation became effective November 27, 1998, and accordingly is applicable to claims filed on or after November 27, 1998, or pending on that date. See Hampton v. Bowen, 785 F.2d 1308, 1310 (5th Cir. 1986) (new laws apply to pending cases unless manifest injustice would result or there is a statutory directive or legislative history to the contrary). Thus, the regulation that became effective in November 1998 is applicable to the January 27, 1999, application.

The Texas Probate Code specifies five methods by which a right to paternal inheritance may be established. Tex. Prob. Code Ann. § 42(b)(1) (West 2002). Three of the methods have no relevance to the facts of the current application. One remaining method is in effect if the child is adjudicated to be the child of the father as provided by Chapter 160 (Uniform Parentage Act) of the Texas Family Code. Id. Alternatively, the Texas Probate Code also provides:

A person claiming to be a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, or claiming inheritance through a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, may petition the probate court for a determination of right of inheritance. If the court finds by clear and convincing evidence that the purported father was the biological father of the child, the child is treated as any other child of the decedent for the purpose of inheritance Tex. Prob. Code Ann. § 42(b)(1). A child may rely upon any of the five methods enumerated in § 42(b)(1) to show his/her right to inherit from the biological father. See e.g., Matherson v. Pope, 852 S.W.2d 285, 288 (Tex. App. 1993, writ denied).

In the instant case, no court decree has been obtained. However, as stated, SSA will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before the worker's death. Paternity will be decided using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2). The lab report is evidence that would be considered by a Texas court. Tex. Fam. Code Ann. § 160.621(a) (West 2002). The Texas Family Code provides that a verified written report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the matters it contains. Id. It is noted that the lab report is from a laboratory that is accredited by the American Association of Blood Banks (AABB). See Tex. Fam. Code. Ann. § 160.503 (Requirements for Genetic Testing).

The wage earner is deceased and could not be tested. B~, her mother, and three of the wage earner's siblings were tested (sisters, J2~ and B2~, and the wage earner's brother J3~). Texas courts have considered tests performed on a deceased putative father's relatives in order to determine paternity posthumously. A 1991 district court case involved a claim on behalf of an alleged daughter for benefits under a life insurance policy belonging to a deceased federal worker. Tipps v. Metropolitan Life Ins. Co., 768 F.Supp. 577, 577-579 (S.D. Tex. 1991). Texas State law controlled with respect to familial relations. Id. at 579. The court indicated that under Texas law an action to establish paternity could be maintained after the death of the father. Id. A parent-child relationship could be established by showing that the alleged father was the biological father. The court noted that clear and convincing evidence was that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, but there was no requirement that the evidence be unequivocal or undisputed. Id. at 579-580. The court explained that because there was no genetic material from the deceased alleged father, the biological relationship would have to be determined by inference. Id. at 580. The deceased worker's parents provided blood samples. The court concluded that the DNA fingerprinting evidence, in conjunction with the other evidence, established by clear and convincing evidence that the deceased worker was not the biological father. See id.

A 1996 case held that an action to establish paternity under Texas Family Code, Chapter 160, could be brought after the death of the alleged father. In the Interest of A.S.L., 923 S.W.2d 814, 817-818 (Tex. App. 1996, no writ). The court in A.S.L. explained that the trend in modern law was to accord children born out of wedlock the same legal status as other children, and to deprive a child of the opportunity to establish parentage would be contradictory of this trend. Id. at 817. A clear and convincing evidence standard is applicable to an action to establish paternity after the death of the alleged father. Id. at 818. The court noted that § 42 of the Probate Code also accorded a biological child of the decedent an opportunity to establish by clear and convincing evidence that the decedent was the father. Id.

In 2001, Texas became the first state to adopt the Uniform Parentage Act. Tex. Fam. Code Ann. Chapter 160 (Uniform Parentage Act) (Acts 2001, 77th Leg., ch. 821 (effective June 14, 2001)). The Uniform Parentage Act governs every determination of parentage in Texas. Tex. Fam. Code Ann. § 160.103(a). A father-child relationship may be established by an adjudication of the man's paternity. Tex. Fam. Code Ann. § 160.201(b). The Uniform Parentage Act provides for, and focuses on, genetic testing. A report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the report. Tex. Fam. Code Ann. § 160.621. The Uniform Parentage Act expressly provides that a court may order genetic testing of relatives, including brothers and sisters, when an alleged father is not available. Tex. Fam. Code Ann. § 160.508 (genetic testing when all individuals not available). The Uniform Parentage Act also permits a court to order genetic testing of a deceased individual. Tex. Fam. Code Ann. § 160.509 (deceased individual).

The results of genetic tests may be used to identify the father of a child. Tex. Fam. Code Ann. §§ 160.505, 160.631. The results of genetic testing can only be rebutted by other genetic tests. Tex. Fam. Code Ann. §§ 160.505(b); 160.631. The Uniform Paternity Act provides that “If the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity.” Tex. Fam. Code Ann. § 160.631(e).

Thus, under the Uniform Parentage Act, a Texas court would order additional testing if genetic testing identified more than one man as the possible father. Tex. Fam. Code Ann. § 160.505(c). If a court found that genetic testing did not identify or exclude a man as the father, the court would not dismiss the action and would consider the results of genetic testing and other evidence to adjudicate the issue of paternity. Tex. Fam. Code Ann. § 160.631(e). Therefore, under the Uniform Parentage Act, a Texas court would order additional testing to exclude a brother as a possible father, and also consider additional evidence if testing could not exclude a brother as the father. However, under Texas law, there is more than one method through which a child may establish a right to paternal inheritance. Tex. Prob. Code. Ann. § 42(b)(1). A child has a right to inheritance if the probate court “finds by clear and convincing evidence that the purported father was the biological father of the child.” Id. In a 2000 case, a Texas Court of Appeals upheld a determination that a child had established a right to paternal inheritance by clear and convincing evidence, even though the DNA report did not indicate that the decedent was the father. Villery v. Solomon , 16 S.W.3d 106, 109-110 (Tex. App. 2000). The Court of Appeals noted that the DNA tests were not conclusive and explained that the trial court was the sole judge of the credibility of the witnesses and the weight to be given to the testimony. Id. at 110.

Thus, tests performed on the relatives of an alleged father and other evidence may be considered in order to make a posthumous determination of whether the purported father was the biological father of the child. In the instant case, testing of the deceased wage earner's relatives resulted in a conclusion that there is a 99.99% probability of grandparentage, and at least 99.99% of the population was excluded from the possibility of being the biological grandparents of the child. Based on the conclusion contained in the lab report, it logically follows that a son of the biological grandparents is B~'s father. Although the lab report does not expressly reference the wage earner by name, the report does exclude over 99% of the population, and does not exclude sons of the alleged grandparents as being the B~'s father. The lab report does indicate that the “DNA patterns were determined from three siblings of the deceased alleged father.”

As noted in T~, the determination of paternity must be made by inference when genetic material cannot be obtained from a deceased alleged father. See T~, 768 F.Supp. at 580. Clear and convincing evidence is defined as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007. There is no requirement that the evidence be unequivocal or undisputed. See T~, 768 F.Supp. at 580. The Paternity Evaluation Laboratory Report does not rule out the theoretical possibility that a brother of the wage earner could be the father. The signed child relationship statement from J3~ indicates that the wage earner was B~'s father. The child's mother, of course, contends that the wage earner is B~'s father. On the issue of credibility, it is noted that J3~ was one of the siblings (“alleged uncle”) who voluntarily submitted to DNA testing as part of the 1994 Paternity Evaluation.

There is clear and convincing evidence that either the wage earner or a brother of the wage earner is the father. There is no indication or allegation that a brother of the wage earner is the father. Assuming that you are satisfied that no brother of the wage earner is the father, we believe that there is clear and convincing evidence establishing that B~ is the wage earner's child.

With respect to the first possible month of entitlement, benefits not based on disability may only be paid retroactively for up to a maximum of six months prior to the application. See 20 C.F.R. § 404.621(a)(1)(ii). Although DNA testing was performed in 1994, the first possible month of entitlement would be six months prior to January 1999 application. Although prior applications were filed in 1993 and 1996, benefits can only be paid based on the current application. The denials of the prior applications are administratively final and cannot be reopened. Because the regulations were amended in 1998, and Texas law has changed, the doctrine of res judicata does not bar consideration of the current application. See K~, 3 F.3d at 77-80 (given changes in regulations, doctrine of res judicata inapplicable, but plaintiff failed to establish any exceptions to the rules of administrative finality).

In conclusion, B~ is entitled to child's benefits assuming that it is established that Johnnie S~, or another brother of the wage earner, is not the father. If established, child's benefits for B~ would begin with the six-month period prior to the filing of the January 1999 application.